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(영문) 대전고등법원 2020.12.04 2020노318

강간치상등

Text

The appeal by the prosecutor and the defendant shall be dismissed.

Reasons

1. Summary of grounds for appeal;

A. In light of the following facts: (a) a prosecutor 1) mistake of facts or misapprehension of legal principles (not guilty part of the injury resulting from rape) and the victim’s house, it is evident that there was no agreement on the sexual relationship between the defendant and the victim before entering the victim’s house; (b) the victim’s statement is more reliable than the defendant’s statement; (c) the victim’s consent to the sexual relationship is difficult to deem that the victim consented to the sexual intercourse; and (d) the victim’s ex post facto attitude is a typical sexual violence victim’s behavior among the facts charged in the instant case, the court below acquitted the Defendant on the injury resulting from rape, despite being found guilty of rape, there was an error of law or misapprehension of legal principles by mistake of facts or misapprehension of legal principles in the statement of grounds for appeal; (b) the prosecutor submitted earlier stated only the fact that there was a mistake of facts or misapprehension of legal principles as to the whole judgment in the statement of grounds for appeal, but it also stated a specific ground for unfair sentencing as well as a legitimate ground for appeal (see, e.g., imprisonment for two years).

B. The lower court’s punishment is unreasonable on the ground that the Defendant (e.g., the Defendant’s punishment is unreasonable).

2. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principle

A. The summary of the facts charged is as follows: (a) around 05:30 on June 16, 2019, the Defendant: (b) prevented the victim from resisting and resisting the victim’s sexual organ by his/her hand at the victim’s home; (c) prevented the victim from resisting the victim’s vessel by hand; and (d) prevented the victim from resisting the victim’s vessel by hand; and (c) caused sexual intercourse on one occasion; and (d) thereby, the victim suffers from an internal and external gambling that requires approximately two weeks of treatment.

B. The lower court’s judgment directly determined the victim.