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(영문) 광주고등법원 2020.02.13 2019노442

강간

Text

All appeals filed by the defendant and prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant: The sentence imposed by the lower court on the grounds of unreasonable sentencing (three years of imprisonment) is too unreasonable.

B. Prosecutor 1) The measure that the lower court exempted the Defendant from the disclosure and notification order, which was improper by the lower court, is unreasonable.

2. Determination

A. The lower court, as indicated in its reasoning, did not issue an order to disclose or notify the Defendant on the ground that there are special circumstances in which the Defendant may not disclose or notify personal information to the public, in full view of the Defendant’s likelihood of recidivism of sexual crimes, anticipated side effects and expected side effects of the Defendant’s disadvantage due to the Defendant’s order to disclose or notify the disclosure of information, the prevention effect of sexual crimes subject to registration, and the effect of protecting the victims of sexual crimes subject to registration, etc.

The judgment below

Examining the reasoning in comparison with the record, the above judgment of the court below is just and it is difficult to see that there was an error in determining the requirements for the disclosure and notification order.

The prosecutor's assertion is without merit.

B. Determination 1 on the assertion of unfair sentencing by the Defendant and the prosecutor is based on statutory penalty, and a discretionary judgment is made within reasonable and appropriate scope, taking into account the factors constituting conditions for sentencing under Article 51 of the Criminal Act, based on the statutory penalty.

However, considering the unique area of sentencing of the first instance court that is respected under the principle of trial priority and the principle of directness taken by our Criminal Procedure Act and the nature of the ex post facto review of the appellate court, the first instance court’s sentencing judgment was judged to have exceeded the reasonable scope of its discretion when comprehensively considering the conditions of sentencing specified in the process of sentencing review of the first instance court and the sentencing guidelines, or comprehensively taking account of the materials newly discovered in the course of the appellate court’s sentencing review.