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(영문) 서울고등법원 2014.04.04 2014노100

성폭력범죄의처벌등에관한특례법위반(주거침입강간등)등

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Defendant

In addition, all appeals filed by the respondent for attachment order and the prosecutor are dismissed.

Reasons

I. Summary of the grounds for appeal

1. Grounds for appeal by the defendant and the person to whom the attachment order is requested (hereinafter referred to as "defendant");

A. In order to realize a mistake of facts (a.e., indecent act by force against the victim E) the victim E (hereinafter “victim”) only sold and shaking the victim’s sound, and there is no intentional fluence on the part of the victim.

B. The sentence of imprisonment (six months of imprisonment) by the court below on the defendant is too unreasonable.

C. There is no need for disclosure and notification in light of the fact that the victim of the disclosure and notification was not subject to punishment against the defendant, and that there is no risk of recidivism against the defendant.

There is no need to attach an attachment order in light of the fact that the relationship between the family members of the defendant involved in the attachment order has been announced and the defendant has no risk of recidivism.

2. Grounds for appeal by a prosecutor;

A. Fact-finding 1) In spite of the victim explicitly expressed his/her intent to refuse access, the act of the defendant's entering the victim's residence for the purpose of indecent act by compulsion constitutes infringement of residence. The court below which acquitted the defendant of this part of the charges by mistake of facts. 2) Indecent act by compulsion against the victim C (hereinafter "victim") constitutes an indecent act by compulsion.

The judgment of the court below which acquitted this part of the facts charged is erroneous in misconception of facts.

B. The lower court’s sentence on the Defendant of unreasonable sentencing is too unjustifiable.

Ⅱ. Determination

1. The following circumstances are acknowledged according to the evidence duly adopted and examined by the lower court concerning the Defendant’s assertion of mistake of facts (the point of indecent act by compulsion against the victim).

(1) The victim himself/herself has made a detailed statement in an investigative agency and a court of original instance concerning the circumstances in which he/she suffered damage from the defendant.