Defendant

Stuneds

Attorney Kim Jong-hwan (Korean)

1. Innocence not guilty for a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes among the facts charged in the instant case;

2. The prosecution against the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse is dismissed among the facts charged in the instant case

1. Summary of the facts charged

At around 17:00 on June 27, 2010, the Defendant committed an indecent act by taking advantage of his mental disability such as saving the victim’s shoulder with one hand against the victim Nonindicted 1 (the victim Nonindicted 1 (the victim, the 33 years old), who is a mentally disabled person, in the Seo-gu, Seo-gu, Seo-gu, Seo-gu, Seoul, about 17:0, 201, and putting the chest into the part of the victim with another hand, and putting the finger in the part of the victim, and putting the finger into the part of the victim.

2. Determination

Article 6 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides that a person who sexual intercourses or commits indecent act against a female by taking advantage of that person's physical or mental disability is unable to resist, shall be punished as prescribed in the crime under Articles 297 and 298 of the Criminal Act. The crime under Article 6 of the above Act is the legal interest protected to protect the sexual self-determination right of a person who is unable to defend himself/herself due to mental or physical circumstances. Here, the state of refusal to resist refers to the case where psychological or physical resistance is absolutely impossible or considerably difficult. Thus, in order to meet the constituent elements of Article 6 of the above Act, the victim must have been in the state of refusal to defend himself/herself due to physical or mental disability, and such requirement should be interpreted more strictly in light of the fact that Article 302 of the Criminal Act provides for the punishment of a person who has sexual intercourse or indecent act against a minor or a mentally disabled person by force (see, e.g., Supreme Court Decision 2004Do5324, Apr. 2094).

According to the case’s return to the case, the medical certificate of Nonindicted Party 1 for Nonindicted Party 2’s preparation, and the psychological evaluation report of Nonindicted Party 3’s preparation, each of the following facts can be acknowledged: (a) the victim is a woman of Grade III with a mental retardation disability; and (b) the victim’s sociality index was about 7 years and 8 months old; and (c) the victim’s sociality index was about 48.94.

However, the following circumstances can be acknowledged by the evidence duly adopted and examined by the court: ① the victim made a detailed memory and detailed statement about the circumstances at the time of the instant crime, ② when the defendant committed such indecent act as above, the victim committed an indecent act as mentioned above (in the investigation record 43 pages); ③ after the day of the instant crime, the victim stated the facts of the instant damage to the previous △△△ Association, thereby preventing the Defendant from going to the said church (in the investigation record, 46 pages); ④ According to the psychological evaluation report prepared by △△△△ University Medical Institute and Nonindicted 3 on the mental health and mental health clinical psychologist, the victim did not appear to have any other mental ability or ability to defend himself/herself, even though the victim did not have any other mental ability to defend himself/herself as a result of the overall intelligence of the victim, it appears that the victim did not have any other mental ability or ability to defend himself/herself.

Therefore, the above facts charged on the premise that the victim was unable to resist due to mental disability fall under the case where there is no proof of crime, and thus, not guilty is pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act ( even if the above facts charged are judged in advance as a crime of indecent act against a person with mental disability, this is a crime falling under Article 302 of the Criminal Act, which can be prosecuted only upon the victim's complaint pursuant to Article 306 of the Criminal Act. According to the written agreement attached to the trial records, the victim can be recognized as having cancelled the complaint against the defendant on September 6, 2010, which is the date of the prosecution of this case. Thus, the above indictment is dismissed pursuant to Article 327 subparagraph 5 of the Criminal Procedure Act. However, the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, etc. of a person with mental disability and the crime charged in this case, which is not subject to ex officio determination without a prosecutor's amendment

1. Summary of the facts charged

At around 02:00 on February 22, 2010, the Defendant: (a) around 02:00, at the Defendant’s house located in Seo-gu ( Address omitted); (b) around 02:0, the Defendant: (c) in a room of Nonindicted 4 located in Seo-gu, Daegu ( Address omitted); (d) in order to discover and commit an indecent act against the victim Nonindicted 5 (Influor, 13 years old); (d) influenced the victim; (e) putting the victim into the victim’s seat; and (e) placed the brogate in the victim’s seat; (e) 02:30, around 02:40, the Defendant putting the brogate into the part of the victim; and (e) put the finger into the victim’s finger at around 02:40.

2. Determination

The above facts charged are crimes falling under Article 7 (2) 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse, and cannot be prosecuted against the victim's express intent under Article 16 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10260, Apr. 15, 2010). According to the written agreement bound in the trial records, the victim can be recognized as having withdrawn his/her wish to punish the defendant on September 6, 2010, which is after the prosecution of this case. Thus, the prosecution of this case is dismissed pursuant to Article 327 (6) of the Criminal Procedure Act.

Judges Clinical (Presiding Judge)