(영문) 서울고등법원 2014.05.30 2014노630 | 리걸엔진

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(영문) 서울고등법원 2014.05.30 2014노630

성폭력범죄의처벌등에관한특례법위반(장애인준강간등)

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The prosecutor's appeal is dismissed.

Reasons

1. When based on evidence of the summary of the grounds for appeal (the fact-finding) is based on the evidence, the victim C (the victim, 51 years old, hereinafter “the victim”) was not in the state of mental disorder under the influence of alcohol, but was in the state of difficulty in resisting or resisting due to intellectual disability, and the Defendant was fully aware of the fact that the victim has a intellectual disability.

Therefore, while recognizing the facts charged that the defendant attempted to have sexual intercourse with the victim with the knowledge that the victim was unable to resist or have difficulty in resisting due to intellectual disability, the court below acquitted the defendant by misunderstanding the facts.

2. Determination

A. On August 15, 2013, around 13:30 on August 15, 2013, the Defendant: (a) knew that the victim of intellectual disability 1 is in the state of difficulty in resisting or resisting due to intellectual disability in the summer 1, 357, Nowon-gu, Seoul Special Metropolitan City; (b) decided to have sexual intercourse with the victim by using it; (c) benefiting the victim from a grass pool forest under the 1st of the said month; (d) putting the victim into the bottom of the said month; (e) putting the victim into the bottom of the said month; (e) cutting down the her chest; and (e) intending to have sexual intercourse; and (e) intending to have sexual intercourse with the Defendant, but she did not have sexual intercourse.

B. According to the following facts admitted by the evidence duly admitted and investigated by the lower court, the lower court determined that it cannot be denied that the Defendant attempted to sexual intercourse with the victim having difficulties in resisting or resisting due to mental disorders or obscence, etc.

① The victim is a disabled person of Grade I with intellectual disability who is unable to completely memory his/her damage at the time of the instant case and appears to have a disability to the extent that it does not properly understand the concept and meaning of the basic sexual act.

② At the time of the instant case, the victim found her thirst as lost thirst with its thirster, and her disease with her inner mind.

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