The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11088, Nov. 17, 2011; hereinafter “former Act on Special Cases concerning Sexual Crimes”) provides that “A person who has sexual intercourse with a female or commits an indecent act against another person by taking advantage of the status of being unable to resist due to any physical or mental disability shall be punished under Article 297 or 298 of the Criminal Act.”

"A state of non-performance due to a physical or mental disability" in the above provision shall be deemed to include not only the case where the physical or mental disability itself is in a state of non-performance of obligation, but also the case where psychological or physical disability is the main cause of the physical or mental disability and thus, it is impossible or considerably difficult to resist. Among them, in determining whether there is a state of non-performance of obligation due to mental disability, not only the mental disability of the victim but also the relation between the victim and the perpetrator, including the status of the victim and the perpetrator, surrounding circumstances or environment, the content and method of the perpetrator's act, and the perception and reaction of the victim shall be comprehensively examined.

(See Supreme Court Decision 2005Do2994 Decided July 27, 2007). Furthermore, in light of the legislative intent of Article 6 of the former Act on Special Cases of Sexual Violence intending to faithfully protect the sexual self-determination of persons with disabilities, determination of whether the above “a state of arbitracy is a mentally disabled person” should take into account the circumstances that the victim is a mentally disabled person. Thus, the degree of the socially intelligent mind caused by the externally expressed disorder in addition to the intellectual ability of the victim, and the characteristics of the personal relationship arising therefrom.