성폭력범죄의처벌등에관한특례법위반(장애인준강간등)등
All judgment of the court below shall be reversed.
A defendant shall be punished by imprisonment for not less than four years and six months.
Sexual assault against the defendant for 120 hours.
1. Summary of grounds for appeal;
A. In relation to the judgment of the court below in misunderstanding of facts (the defendant), the defendant was not a policeman on February 2, 2013, but a sexual intercourse in this case around February 2012. ② The sexual intercourse in this case was under agreement with the victim, and the victim has three children with the female under 46 years of age. The concept of sexual intercourse is not understood or it cannot be viewed as a disabled person to the extent that it is impossible to understand the concept of sexual conduct or to express whether to engage in sexual conduct.
Article 6 (4) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes shall apply only to cases where the victim is a full mental disability (level 1 of intellectual disability) or a person who has a close mental disability (level 2 of intellectual disability).
Nevertheless, the second instance court found the Defendant guilty of this part of the facts charged. The second instance court erred by misunderstanding facts and affecting the conclusion of the judgment.
B. 1) The sentence imposed by Defendant 1 (the first instance judgment: imprisonment with prison labor for 2 years, etc.; imprisonment with prison labor for 4 years, etc.) is too unreasonable and unfair. 2) The sentence imposed by the first instance court by Defendant 1 on the prosecutor is too unreasonable and unfair.
2. Determination
A. The decision is made ex officio prior to the judgment on the grounds for appeal by both parties.
With respect to the judgment of the court below that found the Defendant guilty, the prosecutor appealed all of the judgment of the court of first instance that sentenced the Defendant guilty, and each of the above judgments shall be sentenced to a single sentence within the scope of a prison term where concurrent crimes are aggravated in accordance with Article 38(1) of the Criminal Act in relation to concurrent crimes under the former part of Article 37 of the Criminal Act, which shall be sentenced to one judgment, as set forth below. Thus, all of the judgment of the court below
However, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court, despite the above reasons for reversal of facts.
B. As to the Defendant’s assertion of mistake of facts, the Defendant2.