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(영문) 광주고등법원 2020.05.21 2019노423

준강간등

Text

Defendant

In addition, all appeals filed by the respondent for attachment order and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. At the time of misunderstanding of facts and misunderstanding of legal principles (hereinafter “Defendant”) with respect to the Defendant and the person subject to a request to attach an attachment order (hereinafter “Defendant”), the victim did not have been in a state of inability to resist due to drunk or diving, and the Defendant was in the process of drinking the victim’s sexual intercourse. However, the Defendant’s act of treating the victim’s sexual intercourse with a view to relaxinging the pain on the bones part, and thus, there is no intention or illegality of similar rape. Nevertheless, the lower court found the Defendant guilty of this part of the charges on the grounds of the victim’s statement, etc., and found the Defendant guilty of this part of the charges. 2) It is unreasonable for the lower court to impose an order to disclose or notify personal information and an employment restriction order

3) The lower court’s sentencing is too unreasonable to impose an order to attach an electronic device, despite the absence of recognition of the risk of repeating the offense by the Defendant.

B. Prosecutor 1) The sentencing of the lower court on the grounds that the period of the attachment order is too short and unreasonable. 2) The period of the attachment order imposed by the lower court is too short and unreasonable.

2. Determination

A. As to the Defendant’s assertion of misunderstanding of facts and misapprehension of legal principles, the lower court determined that, in light of the following circumstances acknowledged by the evidence adopted, the victim could have been in the state of failing to resist at the time of the instant case.

(1) A victim made a concrete and consistent statement from an investigative agency to the court of the lower court regarding the background or process under which he/she was ordered to be marinad by the Defendant, the situation at the time of receiving marina from the Defendant, the Defendant’s behavior at the time of committing the crime

The statement of the victim is the facts charged.