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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal as cited by the court below is that the punishment regulations on persons with disabilities under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes are protected by the right to sexual self-determination of persons with disabilities, so even if the victim is a disabled person with intellectual disability grade, it should be proved that he/she has a mental disorder to the extent that he/she cannot exercise his/her right to sexual self-determination, and the defendant also has such mental disorder with the victim at the time of the indecent act." The legal principle is interpreted as "indecent act against a female or sexual intercourse with a female by taking advantage of his/her physical or mental disability in the state of refusal to resist due to a physical or mental disability" under Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11088, Nov. 17, 201). Thus, Article 6 (1) through (3) of the Act on Special Cases Concerning the Punishment,
2. Determination
A. The summary of the facts charged is a person who served as a security guard of an apartment where the victim D(53 years of age, female) located in Gwangju-si from January 2013 to March 201.
On June 11, 2013, at around 12:15, the Defendant: (a) stated that the Defendant visited the house of a victim with a well-founded physical and mental disorder, which had been determined by the victim’s physical and mental disorder, shall be deemed to be “to be defective only once”; (b) the victim, who was sitting alone inside the inside of the said house, shall be deemed to be “to be defective only once”; (c) the victim himself/herself, her chest and a part of the drinking part, her clothes, was laid off on the part of his/her clothes, and was forced to be laid off on the part of the victim, but he/she renounced the crime by putting the victim out of the body
Accordingly, the defendant attempted to rape the victim who is a disabled person.
B. The lower court’s judgment on the punishment, etc. of the former sexual crime.