성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강간)등
All appeals by the defendant and the prosecutor are dismissed.
1. Summary of grounds for appeal;
A. Defendant: The sentence of the lower court (10 years of imprisonment, 120 hours of order) is too heavy.
B. Public prosecutor: The defendant's request for attachment order should be accepted because there is a risk of recidivism of a sexual crime.
2. Determination
A. Determination of the Defendant’s wrongful assertion of sentencing is based on statutory penalty, and a discretionary determination is made within reasonable and appropriate scope, taking into account the factors constituting conditions for sentencing under Article 51 of the Criminal Act, based on the statutory penalty.
However, considering the unique area of sentencing of sentencing of the first instance that is respected under the principle of trial priority and the principle of direct jurisdiction taken by our criminal litigation law and the nature of the ex post facto review of the appellate court, the sentencing of sentencing of the first instance was exceeded the reasonable scope of discretion when comprehensively taking into account the factors and guidelines for sentencing specified in the first instance sentencing trial process.
In light of the records newly discovered in the course of the appellate court’s sentencing hearing, it is reasonable to file an unfair judgment of the first instance court, only in cases where it is deemed unfair to maintain the sentencing of the first instance court as it is for the court to judge the sentencing of the first instance court.
Unless there exist such exceptional circumstances, it is desirable to respect the sentencing of the first instance trial (see Supreme Court Decision 2015Do3260, Jul. 23, 2015). The lower court rendered the above sentence to the Defendant with due regard to the sentencing stated in its reasoning. The circumstances favorable or unfavorable to the sentencing claimed by the Defendant in the trial are already considered by the lower court, and the first instance judgment was exceeded the reasonable scope of discretion.
It does not seem that there is no particular change in the conditions of sentencing in the trial, and it is reasonable to respect the sentencing of the court below.
Therefore, the defendant's argument of sentencing is without merit.
(b) Judgment on the part of the prosecutor’s request for attachment order;