2016Do4404 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with Disabled Persons)

name of a crime: Rape, Attempted Rape, Punishment, etc. of Sexual Crimes

violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes

Violation of Special Act on Special Cases Concerning the Punishment of Persons with Disabilities (Recognized Crime: Compulsory:

Indecent Acts)

2016 Jeondo49 (Joint Attachment Orders)

Defendant

Prosecutor

Law Firm LLC, Attorneys Shin Sung-ap et al.

Gwangju High Court ( Jeju) Decision 2015No106, ( Jeju) 2015No9 (Joint Judgment) Decided March 16, 2016

February 25, 2021

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

The grounds of appeal are examined.

1. Criteria for determining "physical disability" provided for in Article 6 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter referred to as the "Sexual Crimes Punishment Act");

Article 6 of the Sexual Violence Punishment Act is punishing a person with a physical disability who has sexual intercourse with another person by committing rape or by deceptive means or by force.

Article 6 of the Act on the Punishment of Sexual Violence, which was enacted on April 15, 2010, only punished the sexual intercourse or indecent act against a female or a person who has a disability to resist due to physical disability. However, after the revision of November 17, 201, the Act is subject to punishment such as rape or indecent act against a female or a person who has a physical disability, etc.

Article 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse provides that "a person whose physical or mental disability is subject to considerable restriction in his/her daily life or social life for a long time" and Article 8 of the Act on the Protection of Children and Juveniles against Sexual Abuse provides that "a person who is subject to considerable restriction in his/her daily life or social life for a long time," and similar to the Act on the Punishment of Sexual Violence, Article 8 of the Act on the Protection of Children and Juveniles against Sexual Abuse stipulates that "a person who is subject to considerable restriction in his/her daily life or social life for a long time" refers to a person who is subject to considerable restriction in his/her daily life or social life due to a physical function or structure." Article 2 of the Act on the Prevention of Discrimination against Persons with Disabilities and the Protection of Victims against Sexual Abuse provides that "a person who is subject to considerable restriction in his/her daily life or social life for a long time." In full view of the relevant provisions, it can be interpreted

On the other hand, the state of a victim related to disability differs from that of an individual, and such form and degree are essential elements to determine physical disability as stipulated in Article 6 of the Sexual Violence Punishment Act, and in determining physical disability, the situation of the victim should be sufficiently considered, and the view and standard of non-disabled persons should not be easily concluded that there is no disability by considering the state of the victim.

In addition, in order to establish this crime, the perpetrator should be aware of the victim's physical disability at the time of the crime.

2. The judgment of the court below

The lower court affirmed the first instance judgment convicting the victim of indecent act by compulsion, rape, and attempted rape, on the premise that the victim’s exercise of his/her right to sexual self-determination should have a physical or mental disability to the extent that it is necessary to protect the victim’s exercise of his/her right to sexual self-determination, on the premise that it is difficult to view that the victim has such disability or that the victim was aware of such disability at the time of committing the crime. In so doing, the lower court found the Defendant not guilty on each of the violation of the Sexual Violence Punishment Act (e.g., deceptive act by force against the disabled) and each of the violation of the Sexual Violence Punishment Act, which are the primary facts charged, and affirmed the first instance judgment that found the Defendant guilty on each of the charges.

3. Determination

However, we cannot accept the above determination by the court below for the following reasons.

A. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

1) The victim’s right floor does not contact the ground, resulting in a situation in which the victim faces a big difficulty in walking without a axis or auxiliary device of another person, and where the victim is unable to walk on the right bridge by leaving the right bridge. Although the victim lives with a corrective device, the victim, who is a correction device, has a very short distance to walk compared to the general public, and is still at a very short speed to walk. Furthermore, the victim is not always able to wear such corrective device. Meanwhile, the victim is unable to recognize the other party in the surrounding area due to the left eye, but it is difficult to recognize the right side of the road.

2) On March 27, 1996, the victim was registered with the disabled on March 27, 1996, and at the time of the instant case, the victim was registered with the disabled of class 3 (defluence time) disability.

3) Even before the instant case, the Defendant, who was living in the victim’s side house, visited the victim’s house several times with the victim’s house, and was aware that the victim was a person with a disability who was living in the victim’s bridge.

B. Examining the above facts in light of the legal principles as seen earlier, the victim is a person whose function of the right bridge and the right eye is damaged and who has a physical disability provided for in Article 6 of the Sexual Violence Punishment Act. In addition, in light of the external appearance of the victim, the relationship between the defendant and the victim, etc., the Defendant appears to have been aware that the victim had such physical disability at the time of committing the crime.

Nevertheless, the lower court determined that it is difficult to view that the victim was disabled or the Defendant was aware of it at the time of committing the crime, and rendered a not-guilty verdict on all of the charges of this case as to the violation of the Sexual Assault Punishment Act (comprehion between the disabled) and the violation of the Sexual Assault Punishment Act (Indecent act by force against the disabled), and the violation of each of the Sexual Assault Punishment Act (comprehion). In so doing, the lower court erred by misapprehending the legal doctrine on the meaning of a person with a physical disability prescribed in Article 6 of the Sexual Assault Punishment Act, thereby adversely affecting

C. Therefore, the part of the judgment of not guilty as to the above facts charged should be reversed, and since the part of the conjunctive facts charged which the court below found guilty is also the same as this body, the judgment below should be reversed in its entirety.

4. Conclusion

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.

Supreme Court Decision 201

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan