beta
(영문) 광주고등법원 2013.07.11 2013노207

성폭력범죄의처벌등에관한특례법위반(주거침입강간등)등

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. Defendant 1) misunderstanding of facts or misunderstanding of legal principles cannot be reliable because of lack of consistency, and Defendant’s act is merely a degree of self-confiscing the victim’s hand and body, making it impossible to resist or significantly difficult to resist the victim in the crime of rape, and there is no inclusion of the Defendant’s sexual organ into the victim’s residence. In addition, Defendant entered the victim’s residence through the entrance opened under the victim’s consent to resolve the water problem of the victim’s house, and did not have an intention to commit rape from the beginning, and the victim did not enter the victim’s residence for the purpose of rape. Since the court below revoked the victim’s complaint against the Defendant, the prosecution should be dismissed even if the part of the facts charged in this case’s case’s crime of rape is recognized. Nevertheless, the court below’s finding the Defendant guilty of all of the facts charged in this case was erroneous or erroneous, misunderstanding the facts against the rules of evidence or misunderstanding the legal principles on the crime of rape and intrusion of residence.

B. Prosecutor 1) It is unreasonable for the lower court to dismiss the request for an attachment order even though the Defendant’s improper Defendant’s dismissal of the attachment order risks recommitting a sexual crime. 2) The lower court’s dismissal of an unreasonable sentencing sentence is too unjustifiable.

2. Determination

A. Part 1 of the defendant's case states that (a) whether the judgment of the court below is found to be erroneous or misunderstanding of legal principles or (b) whether rape is established or not, the victim is a mentally disabled person of the third grade of the mental retardation, but the statement is consistent and consistent that "the defendant forced the victim to be placed in a room and forced to take two descendants, and has sexual intercourse with the victim", and the contents of the statement are considerably detailed, and has the ability to express his experience or thoughts by speech.