The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11088, Nov. 17, 201; hereinafter “former Sexual Exposure Act”) provides that “A person who has sexual intercourse with another woman or commits an indecent act against another person by taking advantage of that person’s physical or mental disability is unable to resist shall be punished in accordance with 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.

In light of the legislative intent of Article 6 of the former Sexual Exposure Act, which intends to faithfully protect a person with a disability’s sexual self-determination (see Supreme Court Decision 2005Do2994, Jul. 27, 2007). Furthermore, in determining whether there was a “a situation in which the person with a disability is unable to resist,” the circumstance that the person with a mental disability is the person with a mental disability should be fully considered. As such, whether the victim could actually exercise his/her sexual self-determination at the time of committing the crime by comprehensively examining the degree of his/her psychological disability, other than the victim’s intellectual ability to externally disclose, and the characteristics and communication ability of the victim’s personal relationship.