서울고등법원 2015.08.19 2015노1396



The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

However, for a period of four years from the date this judgment becomes final and conclusive.


Summary of Grounds for Appeal

The punishment sentenced by the court below (five years of imprisonment) is too unreasonable.


The Defendant has a high possibility of criticism by taking advantage of his position as an employer, and attempted to give money to the victim immediately after the commission of the crime.

Accordingly, the victim seems to have suffered from the shock and suffering which are difficult to cure mentally.

However, when it comes to the trial, the defendant acknowledges all of his mistake and reflects in depth, and the victim compensates the victim for a certain part of the damage, and the victim does not want to punish the defendant.

The Defendant was punished for a suspended sentence or heavier punishment or for a sexual crime before committing the instant crime.

The defendant supports his wife, mother, etc. at his place of residence, and there is room for the defendant's detention to entail excessive difficulty to his dependants, and the defendant's wife appeals the defendant's wife to the trial court, and is also relatively clear social relation.

그 밖에 피고인의 나이, 성행, 환경, 이 사건 범행의 동기와 경위, 범행의 방법과 결과, 범행 후의 정황 등 이 사건 변론에 나타난 여러 양형의 조건들과 대법원 양형위원회 제정 양형기준의 권고형량 범위 등 ◇ 법률상 처단형의 범위: 징역 3년 ∼ 징역 30년 ◇ 양형기준상 권고형량 [유형의 결정] 성범죄 > 일반적기준 > 강간죄(13세이상 대상) > 제1유형(일반강간) [특별양형인자] 감경요소: 처벌불원 [권고영역의 결정] 감경영역 [권고형의 범위] 1년6월~3년 을 종합하면, 원심이 피고인에게 선고한 형은 무거워서 부당하다.

Therefore, the defendant's assertion of unfair sentencing is justified.

In conclusion, the defendant's appeal is reasonable, so Article 364 (6) of the Criminal Procedure Act is reasonable.