유사강간
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
However, the above punishment shall be imposed for two years from the date of the final judgment.
1. The lower court rendered a judgment of not guilty (guilty in the grounds) on the facts charged of this case (similar rape) and convicted the part of indecent act by compulsion included therein.
As to this, only the defendant appealed on the ground of unreasonable sentencing on the guilty portion, and the prosecutor did not appeal.
In such a case, “the portion not guilty” as well as the portion of the judgment below’s conviction in accordance with the principle of indivate appeal shall be transferred to the trial. However, “the portion not guilty” has already been separated from the object of attack and defense between the parties, and thus, the court of the first instance cannot re-determine this part.
(see, e.g., Supreme Court Decision 2004Do5014, Oct. 28, 2004). Therefore, “the part not guilty” ought to be determined based on the lower court’s conclusion, and in this context, only the guilty portion is determined.
2. The summary of the grounds for appeal (along-year imprisonment, etc.) by the lower court is too unreasonable.
3. The judgment of the defendant first committed the crime of this case against the victim who had first committed the crime of this case, it is difficult to see the degree of indecent act as minor, and the victim seems to have suffered a considerable mental shock due to the crime of this case, and the age of the victim is disadvantageous to the defendant.
Notwithstanding the above circumstances unfavorable to the Defendant, the lower court seems to be unreasonable.
In light of the circumstances favorable to the defendant, such as the fact that the defendant agreed with the victim in the trial and delivered the agreed amount, the victim expressed his/her intention not to punish the defendant, the defendant recognized all of the crimes in this part in the trial and divided the errors, the defendant did not have been subject to criminal punishment due to the same or similar crimes, the defendant appears to have committed this part of the crime by somewhat contingent impulse, and his/her family relationship.