성폭력범죄의처벌등에관한특례법위반(친족관계에의한준강간)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than three years and six months.
Sexual assault, 40 hours against the defendant.
1. Summary of grounds for appeal;
A. Under the consent of the victim, the defendant of mistake of facts merely suspended sexual conduct because the victim had sexual intercourse with the victim's sexual intercourse with the victim was sexually and ethically differentiated from the victim's sound "mal" to hear. At the time, the victim was not in a state of mental disorder or failing to resist, and even if the victim was drunk, the victim was under the influence of alcohol.
The defendant does not have sexual intercourse with the victim in recognition of the victim's mental or physical disability or impossibility to resist.
Nevertheless, the lower court erred by accepting the statements of the victim with no credibility and found the Defendant guilty of the instant facts charged.
B. The Defendant, even before the instant case, was in a state of mental disorder at the time when he dices a large amount of alcohol exceeding the maximum amount of the ordinary child, and thereby, was in a state of mental disorder.
C. The sentence of the lower court on the Defendant’s sentence of unreasonable sentencing (one year of imprisonment, 40 hours’ order to complete sexual assault treatment programs, disclosure of information, and 5 years’ notice) is too unreasonable.
2. Determination
A. The defendant argued that the judgment of the court below is identical to a mistake of facts among the grounds for appeal in the trial of the court, and the court below rejected the above argument in light of the following reasons: the defendant's argument and its judgment in detail are referred to in the "Determination of the defendant and his defense counsel's argument" in the written judgment, and it is hard to say that the defendant's statement is not reliable. If the judgment of the court below is closely compared with the evidence duly adopted and investigated by the court below and the trial of the court below, it can be justified and there is no error of law that affected the conclusion of the judgment by misconception of facts
In particular, as recognized by the defendant's partial statement, the witness D of the court below and the witness J of the trial court, the victim is together with the defendant's behavior.