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(영문) 서울고등법원 2019.09.24 2019노1646

강간치상등

Text

The judgment below

The guilty part (including the innocent part) shall be reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

Reasons

1. Summary of grounds for appeal;

A. Prosecutor 1) In light of the degree of assault exercised by the Defendant, the victim’s photograph taken after the crime, and the age of the victim, etc., the victim shall be deemed to have suffered bodily injury in the course of rape of the Defendant.

Therefore, the judgment of the court below which acquitted the injury caused by rape is erroneous by mistake of facts or by misapprehending the legal principles.

B) “Any act of transmitting a file recording the situation of rape damage to K” constitutes “an act of distributing obscene sound” under Article 44-7(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. In contrast, the lower court found this part of the facts charged as not guilty was erroneous by misapprehending the legal doctrine or misapprehending the legal doctrine. 2) In light of the overall circumstances of the wrongful assertion of “disclosure notification order and exemption from employment restriction”, the lower court’s measure that exempted the Defendant from disclosure notification order of personal information and exempted from employment restriction order is unreasonable.

3) The lower court’s sentence (one-year imprisonment, etc.) on the ground of unfair sentencing is too uneasible and unfair. B. Defendant (the lower court’s sentence on the ground of unfair sentencing is too unreasonable.

2. Determination

A. The prosecutor's assertion of misconception of facts or misapprehension of legal principles is without merit.

1. In the case of bodily injury resulting from rape, the lower court’s determination that, in light of the circumstances acknowledged by evidence duly admitted and investigated by the lower court and the trial court, the crime of bodily injury resulting from rape is justifiable, the victim’s injury cannot be deemed to have been inflicted in the course of rape, and even if the victim was injured in the course of rape, it does not fall under the crime of bodily injury

(1) In particular, the victim who had access to Taekwondo grounds every day before the entrance of the Sports College may suffer from the wound of arms and legs, etc. in the course of conducting a string campaign.