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(영문) 부산고등법원 2014.11.13 2014노580

성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강간)등

Text

The judgment below

The part of the defendant's case shall be reversed.

A defendant shall be punished by imprisonment for five years.

For the defendant.

Reasons

1. Summary of grounds for appeal;

A. The place where the instant case occurred is the 14th floor corridor of officetels, and there is no “public performance” as a requisite for the crime of public performance and obscenity, and the Defendant’s sexual intercourse at the time does not constitute “obscenity”. Nevertheless, the lower court erred by misapprehending the facts or legal principles on “public performance and obscenity” and “obscenity” which are the constituent elements of the crime of public performance and obscenity, thereby convicting the Defendant of this part of the charges. 2) In so doing, the lower court erred by misapprehending the legal doctrine on “public performance and obscenity” and “obscenity”, which are the constituent elements of the crime of public performance and obscenity, sentenced by the lower court on unreasonable sentencing (six years of imprisonment, completion of 80 hours of sexual assault treatment programs, and four years of disclosure notification order).

B. Prosecutor 1) The above sentence imposed by the lower court on the Defendant case (e.g., both types of punishment) is too uneasible and unfair. 2) The lower court’s dismissal of the Defendant’s request for attachment order is unreasonable, since the Defendant’s request for attachment order

2. Determination

A. Determination 1 on the part of the defendant's case refers to the defendant's assertion of facts or misapprehension of legal principles that are identical to the above grounds for appeal in the court below. The court below held that the defendant's "fact-finding or misapprehension of legal principles" is established in the part of [Judgment on whether a crime of public performance is established], and where a public performance or obscenity crime prescribed in Article 245 of the Criminal Act is committed in the case of patently obscene acts. The "patent" means that an unspecified or many people are in a state in which an unspecified or many people can recognize directly, and it does not necessarily mean that an obscene act goes against the concept of sexual morality by stimulating ordinary people's sexual desire and impairing normal sexual humiliation.

(e).

참조조문