성폭력범죄의처벌등에관한특례법위반(특수강도강간등)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for five years.
Sexual assault, 40 hours against the defendant.
1. Summary of grounds for appeal;
A. Although the Defendant did not force a credit card, and the Internet’s settlement-related site was automatically opened, it was not connected to the Defendant, the lower court erred by misapprehending the fact that the Defendant took the credit card by force and accessed the settlement-related site to find out the passwords.
B. The sentence imposed by the court below on the defendant (the imprisonment of five years, orders to complete sexual assault treatment programs 40 hours, and each confiscation of seized evidence 1, 2, 3, 10, 11) is too unreasonable.
2. Determination
A. Article 48(1)1 of the ex officio determination of criminal law provides that the whole or part of the goods provided or intended to be provided to a person other than an offender who does not belong to the ownership of a person other than the offender or knowingly acquired by a person other than the offender after the crime may be confiscated.
The lower court confiscated each of the evidence Nos. 1 (k), s. 2 (Gam), 3 (S.) (S.), s. 10 (M.W.), and s. 11 (M.W. 11), which are the goods used by the Defendant for the instant crime.
However, since it is apparent that the above articles are owned by the victim by the statement of the victim and the recording of seizure protocol in investigation agencies, they are not subject to confiscation, as they belong to the ownership of a person other than the criminal.
Nevertheless, the court below rendered a sentence of forfeiture of the above articles by misunderstanding the ownership relation of the above articles. Accordingly, the court below erred by misapprehending the law that affected the conclusion of the judgment by forfeiture of the articles that should not be confiscated.
However, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court, despite the above reasons for ex officio reversal.
B. The following circumstances acknowledged by the evidence duly admitted and investigated by the court of the lower judgment regarding the Defendant’s assertion of mistake, i.e., victims.