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(영문) 부산고등법원 (창원) 2017.09.06 2017노133

유사강간치상등

Text

The judgment below

The part of the case of the defendant is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

(b) the defendant;

Reasons

The lower court rendered a judgment that dismissed the prosecutor’s request with respect to the Defendant’s case and the request for attachment order.

In this regard, since only the defendant and the person who requested the attachment order (hereinafter "defendant") have appealed, there is no benefit in the appeal regarding the case of the attachment order claim.

Therefore, notwithstanding Article 9(8) of the Act on the Protection and Observation of Specific Criminal Offenders and Electronic Monitoring, the part of the judgment below regarding the application for attachment order among the judgment below is excluded from the scope of the judgment of this court, and only the part of the case of the defendant constitutes the scope of the judgment of this court

As to the part concerning bodily injury resulting from similar rape among the facts charged in the instant case, misunderstanding of the substance of the grounds for appeal and misapprehension of the legal doctrine, the Defendant had the intent to obtain dissipure by exposing sexual organ to the victim F at the time, and did not have the intent to commit similar rape. Therefore, it is consistent with the Defendant’s intent to rate the injury as concurrent crimes with obscenity and public performance.

Of the facts charged in the instant case, the injury suffered by the victim I does not constitute “the injury” in the crime of indecent act by force.

Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment, which found all of the facts charged.

The punishment sentenced by the court below to the defendant (two years and six months of imprisonment, 80 hours of order) is too unreasonable.

In a case where a confession made by the defendant in the court of first instance is different from the statement in the appellate court, the probative value or credibility of the confession is doubtful solely on the grounds that the confession made by the defendant in the court of first instance is not identical to the statement in the appellate court.

In determining the credibility of a confession, the contents of the confession are objectively rational, what is the motive or reason of the confession, and what is the confession.