The meaning of “sexual freedom,” “sexual self-determination,” and “sexual self-determination,” which are protected under Chapter 32 of the Criminal Act / The meaning of “minor” and “person with a mental disability” and “person with a mental disability,” and the standard for determining whether such person constitutes an indecent act under the above crime / The meaning of “indecent act,” and the standard for determining whether such person committed indecent act under the above crime by force.

Article 302 of the Criminal Act provides, “A person who has sexual intercourse with or commits an indecent act against a minor or a mentally disabled person by deceptive scheme or by force shall be punished by imprisonment with prison labor for not more than five years.” Chapter 32 of Part II of the Criminal Act provides, “The crime of rape and indecent act” is an infringement on an individual’s sexual freedom or sexual self-determination. Here, “sexual freedom” refers to the freedom not to engage in a sexual act that is not passive but not passively, and “sexual self-determination” refers to the right to decide on whether to engage in a sexual act, who is the other party at the time of a sexual act, and how to engage in a sexual act. The fundamental elements of the crime of Chapter 32 of the Criminal Act include rape (Article 297) or indecent act by compulsion (Article 298). Since this crime is a minor or a mentally disabled person who has less capacity to take action than the ordinary person’s ability or ability to cope with it, there is no possibility that a person may be less damage by exercising his or her ability.

In examining the relationship under Article 305 of the Criminal Act and Article 7(5) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, “minor” means “a person aged 13 or older,” and “a person with a mental disability” means a person who lacks the ability to discern things or make decisions due to any mental disorder. In addition, “indecent act” means an act that causes the general and average person in the same position as the victim objectively to cause sexual humiliation or aversion and goes against good moral sense, and that it infringes on the victim’s sexual freedom against the victim. Determination of whether it falls under this ought to be made by comprehensively taking into account the victim’s intent, gender, age, relationship between the offender and the victim, the specific form of the act committed against the victim, objective situation and the concept of sexual morality in the age of the victim. It is possible to determine whether the perpetrator committed the act in question or not, as sufficient to suppress the victim’s sexual freedom, and whether the perpetrator committed the act in question and/or his/her ability to use it, as a whole, should be determined in consideration of various circumstances and circumstances and circumstances of the offender’s.

Articles 297, 298, 302, and 305 of the Criminal Act; Article 7(5) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Supreme Court Decision 2008Do4069 Decided July 24, 2008, Supreme Court Decision 2009Do13716 Decided February 25, 2010, Supreme Court Decision 2011Do7164, Jan. 16, 2013 (Gong2013Sang, 371)

Defendant

Prosecutor

Law Firm Ook, Attorneys Han-soo et al.

Suwon District Court Decision 2018No6057 decided February 12, 2019

The non-guilty part of the judgment below shall be reversed, and that part of the case shall be remanded to Suwon District Court.

1. Summary of this part of the facts charged

On March 11, 2018, from around 01:35 to 03:50 on the same day, the Defendant provided the victim with a penphone at △△△△△△△△△△△ located in a photophone, and had the victim resist or refuse to properly resist the things or make decisions due to drugs, with the intent of committing an indecent act against the victim by using the circumstances that the victim, who was showing shower in the toilet, would not properly resist or refuse to resist the things or make decisions. The victim, who was showing shower in the toilet, made the victim lick the victim’s sexual organ immediately, made the victim lick back to the victim’s anus in order to put the victim’s sexual organ into the victim’s anus, put the victim’s finger back into the victim’s anus, put the shower into the victim’s anus, sticking the shower into the victim’s resistance, and then injecting the water. By doing so, the Defendant, thereby committing an indecent act against a person with a mental disability.

2. The judgment of the court below

The court below found that the following circumstances can be acknowledged according to the records, and found the defendant not guilty on the ground that the evidence submitted by the prosecutor alone is insufficient to recognize the fact that the defendant committed an indecent act against a mentally ill person by force.

(1) The victim stated in the court that “the date of the instant case was the third met with the Defendant, and the Defendant was to engage in commercial sex acts. In the previous years, the Defendant and the Defendant sold Lone Star, or engaged in commercial sex acts in return for money.” The victim and the Defendant on the day of the instant case were to pay the price for commercial sex acts at the beginning and to engage in commercial sex acts under the agreement. The victim was actually paid KRW 300,000 from the Defendant after going through the telecom.

(2) In relation to the administration of philophones, the victim stated in the investigative agency that “When the defendant met on the day of the instant case, the defendant scambling together with her scam on the day of the instant case, the victim told her whether she is her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her.”

(3) The Defendant injected philophones into the victim’s arms. According to the victim’s photographs taken on the day of the instant case, the Defendant did not have the appearance of having the parts of the vegetables or having the vegetables by having the parts of the vegetables or having the vegetables. If the victim did not cooperate with the vegetables or vegetables by taking the vegetables. If the victim did not cooperate with the vegetables or vegetables even vegetables, the vegetable injection was difficult.

3. Judgment of the Supreme Court

A. Article 302 of the Criminal Act provides, “A person who has sexual intercourse with or commits an indecent act against a minor or a mentally disabled person by deceptive scheme or by force shall be punished by imprisonment with prison labor for not more than five years.” In Chapter 32 of Part II, the Criminal Act provides, “the crime of rape and indecent act” and the crime provided for in this Chapter is an infringement on an individual’s sexual freedom or sexual self-determination right. Here, “sexual freedom” refers to the freedom not to actively engage in a sexual act but not to actively engage in a sexual act, and “the right to sexual self-determination” refers to the right to decide on whether to engage in a sexual act, who is the other party at the time of the sexual act, and how to engage in a sexual act. The fundamental constituent elements of the crime provided for in Chapter 32 of the Criminal Act refer to the right to self-determination of the crime of rape (Article 297) or indecent act by force (Article 298). Since this crime is a minor or a mentally disabled person who is less likely to engage in a crime than the exercise of force.

In examining the relationship between Article 305 of the Criminal Act and Article 7(5) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, “a minor” means “a person aged 13 or older than 19”. “a person with a mental disability” refers to a person who has lost the ability to discern things or make decisions due to mental disorder. In addition, “a person with a mental disability” means an act that causes general and average persons in the same place as the victim objectively to feel sexual humiliation or aversion and goes against good moral sense and that infringes on the victim’s sexual freedom against a specific victim. Determination of whether such an act constitutes “a person” ought to be made by comprehensively taking into account the victim’s intent, gender, age, relationship between the perpetrator and the victim, detailed attitude of the act committed against the victim, objective situation surrounding the victim, and sexual morality at the time of the crime. It is also possible to determine the degree of infringement upon the victim’s freedom and influence as well as the form and influence of the victim’s social and economic pressure, etc. (see Supreme Court Decision 2009Do13716, supra.).

B. (1) The problem at issue was that the mother of the victim reported to the police at 112: (a) the victim returned to the police at 11:00 hours before the day prior to the crime was committed; (b) the victim returned to the police at 4:00; and (c) the victim deemed that he was in possession of a son, even though he did not have the same condition as having been drunk and drunk, and thus, he did narcotics. At the time, the victim was a student under 16 years of age attending high school, and was a child under the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Protection Act”), and the child under the Child Welfare Act. In light of the fact that it was difficult for the prosecutor to find that the victim was aware of the fact that the victim was under the influence of the Defendant at the time of committing an indecent act against the child or juvenile sex trafficking, and that it was difficult for the Defendant to apply this part of the charges with the consent of the first instance court, the Defendant and the defense counsel was fully aware of the facts charged.

(2) As pointed out in the grounds of appeal by the prosecutor, it is not clear whether the court below accepted the defense counsel's assertion that "the victim himself/herself saw a shower on his/her port, etc., and ② whether the victim's consent to sexual traffic and the medication of phiphonephones should be deemed to have consented to the acts identical to the facts charged by the defendant that have been subsequently committed. If the above purport is the ①, the judgment of the court below should be deemed to have committed an unlawful act affecting the conclusion of the judgment in violation of the rules of evidence. In other words, the defendant recognized the facts charged by the court of first instance. The victim made a statement to the effect that he/she appeared as a witness and made a statement corresponding to the facts charged by the court of first instance, and other evidence cited by the judgment of the court of first instance are sufficient to recognize that the confession of the defendant is true. Nevertheless, if the court below concluded that there was no evidence that the defendant committed an act stated in the facts charged solely on the ground

(3) Next, we examine whether there was an error in the judgment of the court below as to the purport of the above ② If the victim’s consent was made in sexual assault crime, the meaning of the victim’s consent would normally be “approval or acceptance of another person’s act.” The reason why the establishment of a crime is denied on the ground that the victim’s consent was obtained in relation to the act committed by the victim is because such act does not constitute infringement on the victim’s sexual freedom or sexual self-determination right. However, even if the victim consented in advance to commercial sex acts, the victim still has the right to reverse the consent, as well as has the freedom to refuse sexual contact or sexual behavior that was not anticipated by the victim. Therefore, whether the victim consented to the act committed against the victim should be determined on a specific and individual basis by comprehensively taking into account the background and manner of the act, age of the victim, and circumstances at the time of the crime.

Examining these legal principles, there is sufficient reason to view that the Defendant’s act, such as this part of the facts charged, constitutes a case in which the Defendant committed an indecent act against the victim by force. The reasons are as follows. Above all, in light of the background and form of the Defendant’s act, and the victim’s age, etc., the Defendant’s act is a virtual act difficult to anticipate the general and average person in the same position as the victim, and thus, sexual abuse is more likely to cause sexual humiliation or aversion. Even if the victim agreed to engage in commercial sex acts, it is difficult to deem that such act was anticipated to have been committed or that prior consent thereto was given. Moreover, it is difficult to deem that the victim consented to the phiphone medication, and thus, it cannot be deemed that the victim approved that the victim would have committed any sexual act. The victim stated in the investigative agency and the lower court that the victim was unable to actively resist the Defendant’s act under the influence of the phiphone medication. It is readily concluded that the victim in a state of mental and physical disability did not clearly state his intention to refuse sexual contact or sexual act.

C. Nevertheless, the lower court acquitted the Defendant of this part of the facts charged on the grounds as indicated in its holding. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the degree of probative value of evidence to be found guilty in a criminal trial, and by misapprehending

4. Conclusion

Therefore, the non-guilty part of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Park Jung-hwa (Presiding Justice)