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(영문) 부산고등법원 (창원) 2015.06.17 2015노117

강간등

Text

The defendant's appeal is dismissed.

Reasons

1. The court below rejected the prosecutor’s request to attach an attachment order on the ground that it is difficult to deem that the defendant is likely to recommit a sexual crime, while sentencing four years of imprisonment with prison labor, by recognizing the defendant guilty of the facts charged in the instant case.

As to this, only the Defendant appealed on the ground of mistake of facts and unreasonable sentencing regarding the judgment below, the part of the judgment below’s request for attachment order does not have interest in appeal

(1) Notwithstanding the provisions of Article 9(8) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders, the part of the request for attachment order is excluded from the scope of the trial of this court. Thus, the scope of the trial of this court is limited to the part of the Defendant case except the part of the request for attachment order among the judgment below.

2. Summary of grounds for appeal;

A. In relation to each injury, misunderstanding of facts and misunderstanding of legal principles 1), the court below convicted the victim C of this part of the facts charged. As such, the court below erred by misunderstanding of facts and adversely affecting the conclusion of the judgment. 2) In relation to each rape, even though the defendant merely has sexual intercourse with the victim under the agreement with the victim, and even if the victim had threatened the victim with the victim as stated in paragraph 2 of the facts charged, it cannot be said that the victim's awareness of sexual intercourse cannot be seen as intimidation, which is a means of rape, because the victim had already been divorced with her husband, and thus, it cannot be established as a crime of rape. Thus, the court below found the defendant guilty of rape. Thus, the court below erred by misapprehending the legal principles on rape or by misapprehending the legal principles on the crime of rape.

In relation to the three intimidation, the lower court did not have any fact of intimidation against the victim K.