강간등
The judgment below
The guilty portion shall be reversed.
A defendant shall be punished by imprisonment for three years.
Esl. Esl. Esl. Esl.
1. Of the facts charged in the instant case, the lower court dismissed the public prosecution for each of the above parts on the grounds that the said victims expressed their intent not to be punished after instituting a public prosecution for intimidation and assault against the victim C, and sentenced the remainder of the facts charged.
Since the defendant appealed against the guilty portion of the judgment of the court below, and the prosecutor did not appeal against the judgment of the court below (including the dismissed portion of the public prosecution), the dismissed portion of the above public prosecution was separately determined.
Therefore, only the guilty portion of the judgment of the court below (the fact of demotion, special violence, and fraud) constitutes the scope of the judgment of the court of this Court.
2. Summary of reasons for appeal;
A. In relation to the part of a special misunderstanding of facts, the Defendant assaulted the Victim C (Inn, 19 years of age). However, there is no fact that the Defendant was an assault by carrying excessive, fluoring or drinking cans, which are dangerous objects at the time.
In relation to rape, the defendant only assaults a victim after having sexual intercourse under an agreement with the victim, and did not rape by assaulting the victim.
Nevertheless, the judgment of the court below which found all of the charges guilty is erroneous by misunderstanding the facts and affecting the conclusion of the judgment.
B. The punishment sentenced by the lower court (four years of imprisonment) is too unreasonable.
(c)
Even if there is a special circumstance that the defendant should not be restricted from employment, it is improper for the court below to order the defendant to be restricted from employment for three years in child and juvenile-related institutions.
3. Determination
A. 1) Determination on the assertion of mistake of facts in light of the content of the first instance judgment and the evidence duly examined in the first instance trial in accordance with the spirit of the substantial direct trial principle adopted by the Korean Criminal Procedure Act as an element of the trial-oriented principle, the first instance judgment on the credibility of the statement made by the witness in the first instance trial is examined.