The prosecutor's appeal is dismissed.

1. The lower court determined that the victim was not a disabled person under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes on the ground that the victim cannot be deemed to have a mental disorder to the extent that he/she cannot exercise his

However, in light of the amendment history, text, etc. of the aforementioned Act, the requirement that the victim has to have a mental disorder to the extent that he/she cannot exercise his/her right to sexual self-determination is required only under Article 6(4) of the same Act. In order for the crime of sexual intercourse with a disabled person by force under Article 6(5) of the same Act, which is the facts charged of the instant case, to be

In this case, the victim is registered as a class 2 of intellectual disability, and according to the results of the intelligence examination conducted after this case, it is a disabled person who falls under class 3 of intellectual disability under the Act on Special Cases concerning the Settlement of Disabled Persons.

In addition, the court below judged that it is difficult for the defendant to understand that the victim is a disabled person, but in light of the fact that the dialogue between the victim and F is natural and that the video recording of the victim cannot be seen as a statement by a person with normal intellectual ability, it is reasonable to deem that the defendant recognized the disability of the victim.

The statement of the victim regarding the part of the "comforcing force" has credibility when considering the victim's intellectual condition, and the statement of the defendant that sexual relationship was conducted under the agreement is not reliable.

Ultimately, the court below judged the victim differently because it constitutes the disabled person under the Act on Special Cases Concerning the Law, and there is an error of misunderstanding the legal principles in relation to the existence of force.

2. Determination

A. Whether the victim constitutes “disabled person” under Article 6(5) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and whether the Defendant recognized the victim’s disability, etc., the punishment of sexual crimes committed by the former legal doctrine.