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(영문) 대전고등법원 2011.07.01 2011노139

성폭력범죄의처벌등에관한특례법위반(장애인에대한준강간등)

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The judgment of the court below is reversed.

The defendant is not guilty. The summary of the judgment against the defendant shall be published.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) Inasmuch as there is no evidence to prove that a witness who made the original statement was unable to make a statement due to death, disease, foreign residence, unknown whereabouts, or any other similar cause and there is no evidence to prove that the statement was made in a particularly reliable state, the victim was unable to meet the requirements under Article 316(2) of the Criminal Procedure Act and could not be used as evidence of conviction on the sole ground of the fact that the victim was physically handicapped 1 and was unable to make a statement due to physical disability, such as physical disability, which makes it difficult for him to do so. 2) The part on which the victim’s statement was made in witness F, and G’s testimony constitutes a case where the victim’s statement was made by a witness who made the original statement, and the victim’s statement was made in a particularly reliable state.

As such, the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes shall not apply to the crimes of quasi-rape.

3) The lower court’s sentencing of unreasonable sentencing (the imprisonment of eight months is too unlimited and unfair).

B. The lower court’s sentencing is too uneasible and unreasonable.

2. Judgment on the defendant's assertion of mistake of facts

A. The summary of the facts charged in the instant case is as follows: (a) the Defendant: (b) around September 19:30 on September 27, 2010, at the D next delivery located in Daejeon Dong-gu Daejeon, the Defendant: (c) at the first degree of mental retardation disorder, the victim E, a severely disabled person, who has a physical disability that can walk only when he/she is under the influence of the walking device, (d) sits in the married person; and (e) attempted to force the victim to force by force; and (e) the victim’s physical and mental disability.