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(영문) 서울고등법원 2019.03.22 2019노27

성폭력범죄의처벌등에관한특례법위반(장애인준강간)등

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All appeals filed by the prosecutor against the Defendants are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Since the crime of this case of unfair sentencing is extremely serious and bad, the sentence imposed by the court below (Defendant A’s imprisonment with prison labor for three years, etc., Defendant B’s imprisonment with prison labor for two years, etc.) is too unjustifiable and unfair.

B. In light of the legal principles (unfair dismissal of disclosure and notification order, and dismissal of attachment order), there is no special circumstance that the Defendants’ personal information should not be disclosed. However, the lower court’s failure to issue an information disclosure and notification order with respect to the Defendants is unreasonable.

It is improper for the court below to dismiss the defendant's request for an attachment order of an electronic device despite the possibility of repeating sexual crimes.

2. Determination

A. The crime of this case on the assertion of unfair sentencing requires strict punishment against the Defendants, taking into account the following: (a) the Defendants’ sexual intercourse with the victim who lacks judgment ability than ordinary juveniles or committed indecent acts on several occasions; (b) the victim was aware of mental suffering and suffering difficult to cure; (c) the Defendant A has sexual intercourse with the victim during the period of repeated offense; and (d) the Defendants did not receive a letter of suspicion or reach an agreement from the victim up to the trial.

However, Defendant A confessions all of the instant crimes, repents his mistake, and reflects them; Defendant B did not have the same criminal records; there is no change in the conditions of sentencing compared to the original judgment; and the sentencing of the lower court is difficult to be deemed to have exceeded the reasonable scope of discretion; and other factors such as the Defendants’ age, character, conduct and environment, motive, means and consequence of the crime; the conditions of sentencing specified in the instant argument, such as the circumstances after the crime; and the scope of the recommended sentence according to the sentencing guidelines set by the Sentencing Commission of the Supreme Court, etc. do not seem to be unfair since the sentence imposed by the lower court is too uneasible.

The prosecutor's above assertion is without merit.

B. Determination 1 disclosure and notification order as to the assertion of misapprehension of the legal doctrine.