[1] Protection of legal interest in the crime of quasi-indecent act under Article 299 of the Criminal Code (negative)

[2] The meaning of "non-sane" and "non-sane" as referred to in the crime of quasi-rape and quasi-indecent act by compulsion

[3] The meaning of “alkout” and distinction between the loss of consciousness and consciousness / In a case where the Defendant indicted on the ground that the victim was quasi-rape or quasi-indecent act by force with respect to the victim in the habitual condition due to drinking, the standard for determining whether the victim was in the habitual state at the time of committing the crime to the effect that “the victim was not in the state of food at the time of committing the crime and was only in the state of memory.” In a case where the victim was found to have been in an abnormal state to the point of doubt that the victim was in the state of mental disorder or unable to resist, or where it is difficult to expect that the victim was in the state of mental disorder in light of the victim’s relationship and the Defendant’s relationship, etc., whether the victim was not in the state of mental disorder because of the victim’s simple appearance alone constitutes “alkout” (negative)

[1] Article 299 of the Criminal Act provides for the punishment of “a person who commits an indecent act by taking advantage of one’s mental or physical condition that one is unable to resist.” This quasi-indecent act is a protected legal interest to protect a person who is unable to defend himself/herself due to mental or physical condition, and the sexual self-determination refers to the passive aspect that the person’s sexual self-determination is the right to refuse a sexual relationship.

[2] In the crime of quasi-rape, the term “non-rape” means a state in which a person has no normal ability to determine sexual conduct due to a mental disorder, and the term “non-satisfying” means a state in which psychological or physical resistance is absolutely absolutely impossible or considerably difficult due to reasons other than non-satisfy. This also applies to the crime of quasi-indecent act. The same applies to the crime of quasi-indecent act. Even if the victim was in a state in which he/she was unable to exercise his/her normal judgment ability and response and coordination ability for such reason, if he/she was in a state in which he/she was unable to exercise his/her normal judgment ability and response

[3] (A) As a medical concept, the term “alkoutoutout” refers to the degree of alcohol alcohol level above the gravity level, and in particular, in a case where the degree of alcohol alcohol level rapidly falls due to a short-term width, it means the actr loses memory as to the fact that the alcohol content is proceeding at a certain point by affecting the external stimulation process (the specific function of brain involved in suppression formation) recording and interpreting the external stimulation.

In accordance with the degree of damage to alcohol trading, only a simple blackout and a full-scale blackout are included. However, in the form of serious toxicity of alcohol and typically associated with alcohol, it is a concept that is distinguished from the loss of food, which is, the state of loss of food, which is, due to the maximum and chilling behavior of alcohol, falls into the surface of the water.

(B) Therefore, in the case of a victim who complained of quasi-rape or quasi-indecent act after drinking, it is difficult to recognize that the alcohol was a alcohol blackout that only caused the failure of memory formation at the time of the commission of the crime, in addition to memory disorder, the victim was disabled by the recognition function or food condition. However, in contrast, if the victim was under the influence of alcohol and was under the influence of alcohol, it can be recognized that the victim was in the state of mental disorder if the victim was under the influence of alcohol and was under the influence of alcohol.

In addition, in light of the concept of “non-rape or quasi-indecent act in the crime of quasi-rape or quasi-indecent act,” if the victim was not in the state of loss, but the ability to form his/her will or the resistance ability to meet the act of sexual self-determination was significantly deteriorated due to the influence of alcohol, it constitutes “non-influence” and such sexual act against the victim may also constitute the crime of quasi-rape or quasi-indecent act.

(C) However, in the field of law and medicine, alcohol blackout is defined as “the loss of memory for an important case that happens during drinking alcohol,” and from the perspective of the general public, it also refers to “the wide recognition function or the loss of food that occurred after drinking.”

(D) Therefore, in a case where the Defendant was prosecuted on the ground that he/she was quasi-rape or quasi-indecent act against the victim in a habitual condition due to drinking, the court may distinguish whether the victim’s body and consciousness was alcohol boom or significantly deteriorated at the time of committing the crime, such as the victim’s volume of drinking and drinking speed, hours after the crime, the victim’s usual drinking, and whether the victim experienced memory disorder at the time of committing the crime, and whether the victim’s physical and awareness was considerably deteriorated at the time of committing the crime, along with other circumstances, the victim’s situation, speech and behavior, the relationship with the Defendant, the background and method of sexual contact, the place and method of sexual contact, the victim’s age and experience, the victim’s age and experience, the victim’s emotional and emotional condition, the victim’s mental and emotional relation, the victim’s circumstances surrounding the victim’s testimony or behavior at the time of committing the crime, and whether the victim’s testimony and behavior were reasonable after a thorough examination of all the circumstances of the Defendant and the witness at the time of the crime.

In addition, in the objective circumstances before and after the fact of damage, where it is revealed that the victim was in an abnormal state of mental disorder, etc., or in light of the relationship between the victim and the defendant, etc., it is extremely difficult to expect that the victim was sexual intercourse with the defendant if the victim was in a normal state, or that the victim was a passive consent. However, it cannot be concluded that the victim was not in a state of mental disorder merely because the victim’s simple appearance constitutes a “ alcohol blackout.”

[1] Article 299 of the Criminal Act / [2] Article 299 of the Criminal Act / [3] Article 299 of the Criminal Act

[1] Supreme Court en banc Decision 2015Do9436 Decided August 27, 2020 (Gong2020Ha, 1872), Supreme Court Decision 2018Do1646 Decided October 29, 2020 / [2] Supreme Court Decision 2005Do9422 Decided February 23, 2006, Supreme Court Decision 2012Do2631 Decided June 28, 2012

Defendant

Prosecutor

Attorneys Kim Glll-han et al.

Suwon District Court Decision 2018No906 decided May 29, 2018

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

The grounds of appeal are examined.

1. Summary of the facts charged

On February 24, 2017, at around 02:45, the Defendant, under the influence of alcohol, ○○ 311, placed the victim Nonindicted Party 1 (the victim, 18 years of age), who is in the state of mental disorder, on a bed, and committed an indecent act by taking advantage of the victim’s mental disorder, by putting the victim out of the victim’s name, brode, panty, and panty, kid, kid by hand, and kid the victim’s chest.

2. The judgment of the court below

In light of the following circumstances, the lower court reversed the first instance judgment convicting the Defendant of the instant facts charged on the grounds that it is difficult to readily conclude that the victim was in the state of mental disorder at the time of the instant case, and that it cannot be deemed that there was proof to the extent that there was no reasonable doubt that the Defendant committed an indecent act with the victim’s intentional act by quasi-indecent act with the intent to commit an act by force

A. According to CCTV photographs and images installed inside and outside the criminal scene, it is confirmed that the victim walked with the defendant as the entrance of the first floor of stairs, and that the defendant enters the entrance of the third floor with stairs instead of using the elevator, and that the defendant runs away near the third floor entrance of the victim mixed with the defendant during the calculation of the Kabro, and moves to the guest room. The above images do not confirm the fact that the victim is unsatisfy, or that the defendant moves to the third floor with the 1st floor of the Mobur to the third floor of the Mobur. Thus, there is no room to conclude that the victim has lost his mind or reached a defective condition.

B. The Defendant asserted that the victim was able to have a drinking house between the 2 to 5th floor of the above building in order to search for the victim’s external inputs and belongings from the 1st floor of the building, and submitted a written statement to the effect that the Defendant and the victim had observed the main staff of the said building. The “in-house report (the statement of the victim’s staff)” also stated that “I will see that I would see that I would see that I would see the victim’s external inputs and belongings from the 1st floor of the building, and that I would like to see that I would like to see that I would see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see the victim’s external inputs and belongings from the 2nd floor of the building.” It accords with the Defendant’s assertion.

C. Nonindicted 2’s witness Nonindicted Party 2, who had been employed in the telecomter prior to the place of the above crime, stated in the trial that “if the victim was drunk, she was fluored, she was fluorly fluored, she was fluored, and she was fluored, left the room for the telecom, and she was fluorily fluored. After the fluor, the police officer was fluordding the victim’s name by using the telephonephone, but the Defendant was asked the victim’s name and fluor was fluoring the victim’s name.”

D. The victim, along with his/her friendship, is memory of the movement of alcohol to a singing room. However, the next day, stating that the Defendant does not completely memory the Defendant at a singing room. However, if the victim was in a state of mental disorder under the influence of alcohol, it is not easy for the Defendant to return to the victim in such state and return to the drinking house located on several floors, or to move from the first floor to the third floor.

E. There is a possibility that the part of the victim's behavior in his/her own state of consciousness may not be forgotten ("booming").

3. Legal principles concerning the relationship between the crime of quasi-rape and quasi-rape by compulsion and alcohol boom;

A. Article 299 of the Criminal Act provides for the punishment of “a person who commits an indecent act by taking advantage of one’s mental or physical condition that one is unable to resist.” This quasi-indecent act is protected to protect the sexual self-determination of a person who is unable to defend himself/herself due to mental or physical condition, and the sexual self-determination refers to the passive aspect that the sexual self-determination is the right to refuse a sexual relationship (see Supreme Court en banc Decision 2015Do9436, Aug. 27, 2020).

B. In the crime of quasi-rape, the term “non-rape” means a state in which a person has no normal ability to determine sexual conduct due to a mental disorder, and the term “non-satisfying” means a state in which psychological or physical resistance is absolutely impossible or considerably difficult due to reasons other than the non-satfy (see, e.g., Supreme Court Decisions 2005Do9422, Feb. 23, 2006; 2012Do2631, Jun. 28, 2012). The same applies to the crime of quasi-indecent act. Even if the victim was unsatfyed, or was temporarily lost due to alcohol or medicine, etc., even if the victim was unable to exercise his/her normal ability to determine and respond to and coordinate, it constitutes a state in which the person is unable to resist or resist in the crime of quasi-rape or quasi-indecent act.

C. 1) As a medical concept, the term “alkoutoutout” refers to the degree of alcohol alcohol level above the gravity level, and in particular, in a case where the alcohol level rapidly falls due to a short-term width, it means the actr loses memory of the fact that the alcohol content was conducted at a certain point by affecting the personal intermediary process (the specific function of brain involved in suppression formation) recording and interpreting the external stimulation.

In accordance with the degree of damage to alcohol trading, only a simple blackout and a full-scale blackout are included. However, in the form of serious toxicity of alcohol and typically associated with alcohol, it is a concept that is distinguished from the loss of food, which is, the state of loss of food, which is, due to the maximum and chilling behavior of alcohol, falls into the surface of the water.

2) Therefore, in the case of a victim who complained of quasi-rape or quasi-indecent act after drinking, it is difficult to recognize that the alcohol level at the time of committing the crime only caused the failure of memory formation, but rather, it is difficult to recognize that the victim had reached an obstacle to the recognition function or food condition other than memory disorder. However, if the victim was under the influence of alcohol, such as the victim’s omission in the state of being under the influence of alcohol, it can be recognized that the victim was in the state of mental disorder.

In addition, in light of the concept of “the crime of quasi-rape or quasi-indecent act by compulsion” as seen earlier, if the victim was not in the state of loss of consciousness, but the victim’s ability to form an intent due to alcohol or the resistance power to meet the act of infringement of sexual self-determination was significantly deteriorated, such act constitutes “non-influence.” The victim’s sexual act may also constitute the crime of quasi-rape or quasi-indecent act.

3) However, in the field of medical science, alcohol blackouts are defined as “the loss of memory for an important case that happens during drinking alcohol”. From the perspective of the general public, it also refers to “the wide recognition function or the loss of food that occurred after drinking.”

4) Therefore, in a case where the Defendant was prosecuted on the ground that he/she was quasi-rape or quasi-indecent act against the victim in a habitual condition due to drinking, the court may distinguish whether the victim’s body and consciousness was alcohol boom or significantly deteriorated at the time of committing the crime, such as the victim’s volume of drinking and drinking speed, hours after the crime, the victim’s usual drinking, and whether the victim experienced memory disorder at the time of committing the crime, and whether the victim’s physical and awareness was considerably deteriorated at the time of committing the crime, along with other circumstances, the victim’s situation, speech and behavior, the relationship with the Defendant, the background and method of sexual contact, the place and method of sexual contact, the victim’s age and experience, the victim’s awareness of the victim’s sex, the victim’s psychological and emotional condition, the victim’s circumstances surrounding the victim’s statement or mental condition, and whether the victim’s testimony and behavior were reasonable at the time of committing the crime, including the victim’s testimony and emotional response.

In addition, in the objective circumstances before and after the fact of damage, where it is found that the victim was in an abnormal state of mental disorder, etc., or where it is difficult to expect that the victim would have entered into a sexual relationship with the defendant or agreed to the same passively under normal conditions in light of the relationship between the victim and the defendant, etc., the victim should not be readily concluded that the victim was not in a state of mental disorder merely because the victim’s simple appearance constitutes “ alcohol blackout.”

4. Determination on the instant case

A. According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are acknowledged.

1) At the time of the instant case, the victim was 18 years of age and the Defendant was 28 years of age, and there was no call for the relocation of the instant case.

2) At the time of the instant case, the victim was drinking alcohol in excess of the amount of usual alcohol. In particular, on February 23, 2017, the victim was dysing two illness during the short time from around 23:00 to 24:00.

3) On February 24, 2017, around 00:00 and around 00:02, the victim entered a singing room in the underground space of the building with Nonindicted 3, and entered a toilet at around 01:00 and singing out. Nonindicted 3 stated that, at the time of the police investigation, the victim was under the influence of alcohol at the time of the police investigation, even though the victim was under the influence of alcohol, the victim was still under the influence of alcohol, but the victim was not under the influence of walked at a certain level.

4) According to CCTV images, at the time, the victim was able to walk without much big distance. However, the victim appears to have been able to have opened another room while searching for toilets, opened a room, or opened a center on the floor with a sudden radius, and opened it on the floor.

5) At the time of entering the toilet, the victim reported Nonindicted 3’s signals at the time of entering the toilet. The victim did not return to a singing room after the toilet. However, the victim stated in the police investigation that “The victim went to the toilet because he was so good and good that he did not know about his speed,” and that he was unable to take a film at that time.” The victim stated in the police investigation that “The victim got to the toilet because he was so good and good that he did not come to the toilet.” The victim stated that the victim’s answer to the “Wook Makkk,” as ever she walked the horse.

6) At around 01:20 on February 24, 2017, the Defendant met the victim before the first floor of the building in which the said singing practice room was located. The Defendant stated to the effect that, in the course of investigation and trial, the victim and the snow that she was coming from the elevator of the first floor when drinking alcohol in the vicinity and returning home in the process of investigation and trial, the Defendant she got into the building in order to put the toilet into the building. The Defendant she saw the victim and the snow that she was coming from the elevator of the first floor, and she walked the horse in the manner that she she she was “equitoty ..........., she talked about the

7) However, the victim did not have any personal belongings and did not know where she had drinking alcohol. The Defendant did not have any drinking house between the second and fifth floor of the building with the victim in order to find out the external speculation and belongings of the victim.

8) During that process, the victim entered the fifth floor door, stating that “(a) the victim was flick, i.e., flick, flick, and flicked flicks.” At the request of an employee who ought to complete the work, the victim was flicked on the floor by taking the shoulder of the victim as a hand. In this case, the victim flicked the victim on the floor while taking a bath as “fl, flick, flick, flicks.”

9) In the course of the investigation and trial, the Defendant expressed that the victim respondeded to the victim’s house, but the victim tolded that he wanted to grow up with the victim’s house while going to do so, and that he respondeded to the victim “I want to go to go to the telecom?” and that “I want to go to the telecom?”

10) On February 24, 2017, the Defendant and the victim entered the telecom around 02:06, and the Defendant and the victim did not go to the telecom. At around 02:14, the Defendant and the victim entered the telecom, which was the place of crime. According to the CCTV image of the telecom, the victim, at the time of entering the telecom, could walk alone, but the victim seems to have been able to walk alone, but, at the time of leaving the stairs, it seems that there were significant changes such as vadi, vadi, or vadiening the wall or head.

11) Meanwhile, at around February 24, 2017, Nonindicted 3 and the victim’s mothered victim reported to the police around 02:21, 2017, to find the victim. The reported content was “a state of drinking alcohol to female-friendly women, and female-friendly women are drinking alcohol.” At around 02:40, the police confirmed the victim’s entry into the criminal place, and asked the victim’s name by visiting the guest cellphone. At the time the police arrived at the mother cell room, the victim was deprived of the upper part of the body, and was locked back to the bed. On the other hand, the victim’s inner part and panty were discovered from the Defendant’s money.

12) Meanwhile, in the process of the police investigation, the victim stated that he/she was unable to get off and her clothes in his/her usual room, and that he/she was engaged in her duties without deduction upon the withdrawal of alcohol.

13) In the course of investigation and trial, the Defendant recognized that the Defendant was kis the victim and kis on the chest by hand. However, the Defendant stated that: (a) the victim was kising in the telecom and the kis; and (b) the Defendant was kising the chest by hand; and (c) the Defendant was kising from the besa while the Defendant was kising out of the besa, in whole, and was locked by the besa.

14) In addition, the Defendant made a statement to the effect that, in a sound that the Mour related person asked the name of the victim by asking the name of the victim and asked him to the name of the victim, the Defendant received immediately clothes, even though he was unable to get the police officer or his family members of the victim, she did not have any other family members of the victim, she did not occur, and she did not put the victim’s clothes into the body of the victim in the body of a reasonable mind.

B. We examine the above facts in light of the legal principles as seen earlier.

1) If the victim stated that “after drinking, the film is cut,” the possibility of alcohol leakage should not be easily recognized without examining the above circumstances, such as the volume of drinking and the speed of drinking.”

2) The influence of alcohol may vary depending on personal characteristics and circumstances. On the sole basis of the fact that the victim was able to walk for himself/herself, or to act, such as responding to his/her name, etc., that the victim did not have a state of mental disorder, etc. at the time of committing the crime, it is not readily concluded.

3) At the time of the instant case, the victim took a large quantity of alcohol to the extent that he did so. Without knowledge of the method of searching for one’s own behaviors or belongings, the Defendant first ended along with the Defendant on the day of the instant case. The victim locked again without ascertaining the situation even after her name by personal phone, and was in the situation where there was serious problems with the judgment ability and physical response ability to the extent that the police was able to enjoy a part of the clothes even when she was entering the telephone. In light of these circumstances, there is sufficient room to deem that the victim was in a state of mental disorder, such as the need for diving, by drinking alcohol at the time of engaging in an indecent act.

4) In light of the aforementioned circumstances, such as the relationship between the victim and the defendant, age difference, the situation before the victim reaches the defendant, and the circumstances leading up to the cartel, etc., the circumstance cannot be confirmed to deem that the victim consented to the conclusion of a sexual relationship with the defendant. Without considering such overall circumstances, it is unreasonable to deem that the victim was likely to have immediately consented solely on the ground that the victim was unable to memory the situation at the time, without considering such overall circumstances.

5) The Defendant’s statement on the developments leading up to sexual relations within the telecom room is unreasonable. It is difficult to believe that the victim, who entered the telecom with the Defendant and voluntarily kis, voluntarily set off and temporarily set off clothes between the shorter end of the Defendant’s kiscing. It is difficult in light of the empirical rule to see that the victim was out of the inner, panty and inner boom, and that the victim was out of the inner kis, and kisced by kiscing, it is difficult to understand that the victim was out of the inner, and is contrary to the victim’s ordinary habits (the Defendant’s assertion on the circumstances found in the victim’s inner kisc), even though the Defendant thought that the victim consented to the establishment of sexual relations and argued that the victim went into the telecom, but the victim did not normally seem to have been able to suffer from an indecent act by taking advantage of the victim’s mental condition. Rather, it is sufficient to view that the victim’s kiscphone or family.

C. Nevertheless, the lower court acquitted the charged facts of this case on the sole basis of the circumstances indicated in its holding. In so determining, the lower court erred by misapprehending the legal doctrine on “the state of mental disorder” which is the constituent element of quasi-indecent act.

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Tae-tae (Presiding Justice)