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(영문) 광주고등법원 (전주) 2013.06.04 2012노270

성폭력범죄의처벌등에관한특례법위반(강간등치상)

Text

The judgment below

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

A defendant shall be punished by imprisonment for five years.

. Information on the Defendant.

Reasons

1. The lower court rendered a judgment dismissing the prosecutor’s request regarding the part of the Defendant’s case, and regarding the part of the attachment order case, the lower court did not have any interest in appeal regarding the part of the attachment order case.

Therefore, Article 9(8) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders, the legal fiction of appeal, does not apply (see, e.g., Supreme Court Decisions 82Do2476, Dec. 14, 1982; 201Do6705, Aug. 25, 2011; 201Do200, Aug. 25, 201); therefore, the part regarding the attachment order case against the Defendant is not subject to second trial. Accordingly, the part regarding the attachment order case against the Defendant is excluded from the scope of the trial of this court.

2. The defendant and defense counsel’s assertion in the grounds of appeal filed following the deadline for submitting the grounds of appeal shall be referred to the scope of supplement in case of supplemental appellate brief filed by defense counsel within the deadline for submitting the legitimate grounds

1) The Defendant: (a) made a call to the victim’s mother, who is the victim’s mother, voluntarily surrenders to E; (b) heard the speech that the police officer was employed by E; and (c) sought from E to the police officer, who voluntarily surrenders to E; (d) thus, the lower court erred by misapprehending the facts or misapprehending the legal doctrine, even though the punishment should be mitigated or exempted pursuant to Article 52(1) of the Criminal Act. (b) In so doing, the Defendant attempted to capture the victim who was under the influence of alcohol at the time of the instant case to E and sexual intercourse. (c) The Defendant did not have any intention to commit sexual intercourse against the victim.

(B) Although the reasons for appeal are not clearly stated, it is understood and judged as above).

The sentence of unfair sentencing (the imprisonment of six years, information disclosure, notification 10 years, and completion of sexual assault treatment 80 hours) by the lower court is too unreasonable.

3. Determination A.