Open Decision Ledger · Criminal law
Misapprehension, confusion and ignorance induced for intercourse as deception
Supreme Court, June 29, 2023, 2020Do15730 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 성폭력범죄의처벌등에관한특례법위반(장애인위계등간음)·보호관찰명령
Official text on the National Law Information Center
Question
Did the defendant commit rape by deception under Article 6(5) of the Special Act on the Punishment, etc. of Sexual Crimes when, on 10 July 2017, he induced misapprehension, confusion and ignorance in a victim with schizophrenia and a mild intellectual disability, used her mental state and her lack of understanding of the meaning and results of sex to achieve his purpose, and had intercourse with her?
Holding
Yes, on the 10 July 2017 charge. Where an actor, for the purpose of intercourse, induces misapprehension, confusion or ignorance in the victim and uses that mental state to achieve his purpose, the causal relation between the deception and the intercourse may be recognised and the offence is established. Whether the deception is causally related must be judged with the victim's position and perspective in the specific offence situation fully taken into account, and for a mentally disabled victim by weighing her cognitive ability, her relationship with the actor, how the offence came about and the circumstances at the time.
Points at issue, verbatim
행위자가 간음의 목적으로 피해자에게 오인, 착각, 부지를 일으키고 피해자의 그러한 심적 상태를 이용하여 간음의 목적을 달성한 경우, 위계에 의한 간음죄가 성립하는지 여부(적극)
Unofficial English translation
Whether the crime of intercourse by deception is established where the actor, for the purpose of intercourse, causes the victim to have a misunderstanding, error, or unawareness and, by taking advantage of the victim's resulting mental state, achieves the purpose of intercourse (affirmative)
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 2017. 7. 10. 위계에 의한 간음 피고사건 부분과 보호관찰명령 청구사건 부분을 파기하고, 이 부분 사건을 부산고등법원에 환송한다. 나머지 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed with respect to the portion concerning the case of the defendant charged with July 10, 2017 intercourse by deception and the portion concerning the case of the request for a protective supervision order, and those parts of the case are remanded to the Busan High Court. The remainder of the final appeal is dismissed.
Form of the test
Circumstances weighed Stated in the decision
정신적 장애인의 경우 피해자의 지적 능력을 비롯한 구체적인 상태, 행위자와의 관계, 범행에 이르게 된 경위, 범행 당시와 전후의 상황 등을 종합적으로 고려하여 피해자의 성적 자기결정권이 침해되었다고 규범적으로 평가할 수 있는지에 따라 간음행위와 인과관계 있는 위계에 해당하는지 여부를 판단하여야 하고
Unofficial English translation
in the case of a person with a mental disability, whether deception constitutes one having causation with the act of intercourse must be determined by comprehensively taking into account the victim's specific condition including the victim's intellectual ability, the relationship with the actor, the circumstances that led to the crime, and the circumstances at the time of the crime and before and after it, and by whether it can be normatively evaluated that the victim's right to sexual self-determination was infringed, and
Factors
- 행위자가 간음의 목적으로 피해자에게 오인, 착각, 부지를 일으키고
- 피해자의 그러한 심적 상태를 이용하여 간음의 목적을 달성한 경우
- 구체적인 범행 상황에 놓인 피해자의 입장과 관점이 충분히 고려되어야
Unofficial English translation
• where the actor, for the purpose of intercourse, causes the victim to have a misunderstanding, error, or unawareness, and
• where, by taking advantage of the victim's resulting mental state, the actor achieves the purpose of intercourse
• the victim's position and perspective in the specific circumstances of the crime must be sufficiently taken into account
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2020. 8. 27. 선고 2015도9436 전원합의체 판결(공2020하, 1872)
Unofficial English translation
Supreme Court en banc judgment 2015Do9436 rendered August 27, 2020 (Gong 2020 Ha, 1872)
Decisions referred to
[1][2] 대법원 2020. 8. 27. 선고 2015도9436 전원합의체 판결(공2020하, 1872)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
The decision does not say whether the actor must know that the victim has a mental disability; how is the offence treated when the accused says he did not know of it?
The remand judgment of the Busan High Court will show how the comprehensive weighing of the victim's condition and the circumstances of the offence is applied to these facts. Any amendment to Article 6(5) of the Special Act on the Punishment, etc. of Sexual Crimes, or a later decision qualifying the en banc rule of Supreme Court Decision 2015Do9436, would require this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “The decision does not say whether the actor must know that the victim has a mental disability; how is the offence treated when the accused says he did not know of it?” vs Independent “What probation order, if any, should be imposed following reconsideration of the July 10, 2017 charge on remand?”
The primary reading asks whether the actor must know of the victim's mental disability, while the independent reading asks what probation order should follow on remand.
행위자가 간음의 목적으로 피해자에게 오인, 착각, 부지를 일으키고 피해자의 그러한 심적 상태를 이용하여 간음의 목적을 달성한 경우, 위계에 의한 간음죄가 성립하는지 여부(적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Busan High Court, in its judgment of 22 October 2020 (2020No214), acquitted Defendant on the charge of 10 July 2017. It held that the charged words and conduct went no further than proposing a meeting, that they did not cause the victim to misapprehend the sexual act itself, its motive or the elements bound up with it, and that the victim's statement said nothing about deceptive conduct connected with intercourse, so the prosecution's evidence did not show deception or that the victim had fallen into misapprehension about an important motive for the intercourse. It also acquitted Defendant on the charges of 11 July and mid-July 2017, and the probation order claim was heard together with the criminal case.
Supreme Court standard: The Supreme Court held that the court below had misread the meaning of deception in Article 6(5) of the Special Act on the Punishment, etc. of Sexual Crimes and that the error affected the judgment. Following the en banc rule in Supreme Court Decision 2015Do9436, it held that the defendant's words and conduct were deception causally related to the intercourse: he induced misapprehension about his relationship with the victim, used her mental state and her lack of understanding of the meaning and results of sex, and thereby impaired her sexual self-determination. It reversed the part of the judgment on the 10 July 2017 charge and the probation order part, remanding those parts to the Busan High Court, found no error in the acquittals on 11 July and mid-July 2017, and dismissed the rest of the appeal.
Distinguishing conditions
- A victim whose age, upbringing, environment and level of intellectual or mental impairment leave no ground to doubt that she could exercise full sexual self-determination, so that the actor's words are no more than an ordinary proposal to meet.
- Conduct that does not induce misapprehension, confusion or ignorance about the sexual act, the motive for it or the elements bound up with it, as the court below found on the charged words in this case.
- The charges of 11 July and mid-July 2017, where the Supreme Court found no violation of the rules of logic and experience and no misreading of the law in the acquittal.
Record verification notes
Set the file against the victim's assessed condition: mental disability grade 3, an IQ of 61 to 71, a social age of ten years and two months, and schizophrenia treated since middle school. Then test the defendant's words and conduct, from the approach at the arcade through the drinks, the motorcycle ride, the motel and the KRW 10,000 given afterwards, against the misapprehension about a romantic relationship and her lack of any understanding of pregnancy. Confirm the reach of the remand: only the 10 July 2017 charge and the probation order part were reversed, while the acquittals on 11 July and mid-July 2017 stand, and the prosecution's appeal on the probation order claim was deemed filed by statute even though it carried no stated grounds.
From the official text
Points at issue
[1] 위계에 의한 간음죄에서 ‘위계’의 의미 / 행위자가 간음의 목적으로 피해자에게 오인, 착각, 부지를 일으키고 피해자의 그러한 심적 상태를 이용하여 간음의 목적을 달성한 경우, 위계에 의한 간음죄가 성립하는지 여부(적극) [2] 위계에 의한 간음죄에서 간음행위와 인과관계가 있는 위계에 해당하는지 판단할 때에는 구체적인 범행 상황에 놓인 피해자의 입장과 관점이 충분히 고려되어야 하는지 여부(적극) / 정신적 장애인의 경우, 간음행위와 인과관계 있는 위계에 해당하는지 판단하는 기준
Unofficial English translation
[1] Meaning of "deception" in the crime of intercourse by deception / Whether the crime of intercourse by deception is established where the actor, for the purpose of intercourse, causes the victim to have a misunderstanding, error, or unawareness and, by taking advantage of the victim's resulting mental state, achieves the purpose of intercourse (affirmative) [2] Whether, in determining whether deception constitutes one having causation with the act of intercourse in the crime of intercourse by deception, the victim's position and perspective in the specific circumstances of the crime must be sufficiently taken into account (affirmative) / Standard for determining whether deception has causation with the act of intercourse in the case of a person with a mental disability
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결 중 2017. 7. 10. 위계에 의한 간음 피고사건 부분과 보호관찰명령 청구사건 부분을 파기하고, 이 부분 사건을 부산고등법원에 환송한다. 나머지 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed with respect to the portion concerning the case of the defendant charged with July 10, 2017 intercourse by deception and the portion concerning the case of the request for a protective supervision order, and those parts of the case are remanded to the Busan High Court. The remainder of the final appeal is dismissed.
Provisions referred to
[1] 성폭력범죄의 처벌 등에 관한 특례법 제6조 제5항 [2] 성폭력범죄의 처벌 등에 관한 특례법 제6조 제5항
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
Back to the ledger