beta
(영문) 서울고등법원 2019.06.13 2018노3172

성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강간)등

Text

The judgment below

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

Defendant

(b).

Reasons

With respect to the part of the defendant's case, the court below sentenced the conviction, the judgment dismissing the prosecutor's request with respect to the part of the request for attachment order, and the judgment ordering probation for five years with respect to the part of the request for probation order.

On the other hand, only the defendant and the person requesting the probation order (hereinafter referred to as the "defendant") filed an appeal.

Therefore, the part of the request for attachment order does not have a benefit to the defendant, and the defendant is excluded from the scope of the judgment of this court, notwithstanding Article 9 (8) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders.

On the other hand, since the defendant appealed on the part of the defendant's case, it is deemed that the defendant filed an appeal on the part of the case of probation order in accordance with Article 21-8 and Article 9 (8) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders.

Therefore, the scope of this court's adjudication is limited to the defendant's case and probation order case.

The summary of the grounds for appeal on the part of the defendant is examined to the extent that the defendant and defense counsel asserted in documents other than the grounds for appeal supplement.

It is true that the defendant alleged that he did not mistake or assault or threaten the victim by mistake of facts or by misunderstanding of legal principles has sexual intercourse with the victim C (the victim, 10 years old).

However, this is only a mutual agreement, and it is not a sexual intercourse by assaulting and threatening the victim, such as the facts charged.

The direct evidence of the facts charged of this case is only a video recording in which the victim made a statement after being examined by the police (hereinafter referred to as the "video recording of this case").

However, at that time, the victim's response to the defendant was induced by the police at that time.