성폭력범죄의처벌등에관한특례법위반(장애인강간)등
The judgment of the court below is reversed.
The Defendant’s motion to attach the instant attachment order is dismissed.
1. Summary of grounds for appeal;
A. According to the evidence submitted by the prosecutor, including the statement between the victim of the Defendant case and C, the fact that the Defendant and the person subject to a request to attach an attachment order (hereinafter “the Defendant”) have sexual intercourse with the victim by exercising force against the victim, and rape by exercising violence, etc. can be sufficiently recognized.
Nevertheless, the lower court erred by misapprehending the facts and acquitted the Defendant of the facts charged.
B. The Defendant’s case requesting an attachment order is found guilty as above, and the Defendant is likely to recommit a sexual crime.
Nevertheless, it is unreasonable for the court below to dismiss the request for the attachment order of this case.
2. Judgment ex officio due to changes in indictment;
A. Before the judgment on the grounds for appeal is examined ex officio prior to the judgment on the grounds for appeal, the prosecutor applied for changes in the indictment with respect to the violation of the existing Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (comprehion of disabled persons, etc.) from “19:0 police officers in February 2019” to “3. 19:00 police officers in February 11, 2019,” and with respect to the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with Disabled Persons), the date and time of the crime was changed to “19:0 on March 12, 2019.” Since this court permitted this, the part of the judgment of the court below on the defendant's case cannot be maintained as it is.
B. Meanwhile, in a case where a defendant case is reversed due to changes in the indictment, the propriety of the request for an attachment order should be determined as to whether the request for an attachment order is proper (see, e.g., Supreme Court Decision 2010Do3910, Jun. 10, 2010). Of the judgment below, the part of the request for an attachment order among the judgment below is no longer maintained.
3. The judgment of the court below is based on the above reasons for ex officio reversal, and without examining the grounds for appeal by the prosecutor, Article 364(2) of the Criminal Procedure Act and the Act on Probation and Electronic Monitoring of Specific Criminal Offenders.