성폭력범죄의처벌등에관한특례법위반(장애인강간)
The judgment below
The guilty portion shall be reversed.
A defendant shall be punished by imprisonment for five years.
Sexual assault against the defendant for 80 hours.
1. In a case where the court below found the defendant not guilty on the grounds of the facts charged in this case, the court below did not render a separate verdict of not guilty on the ground that it found the defendant guilty of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes in relation to the crime in this case.
The Court ruled.
In this regard, only the defendant appealed against the judgment below, and the prosecutor did not appeal against the acquittal portion of the above reasons.
In such a case, the verdict of innocence by the indivisible principle of appeal is to be transferred to the trial in the first instance along with the guilty part, but this part has already been excluded from the object of attack and defense between the parties, and has been virtually relieved from the object of trial.
Therefore, the conclusion of the judgment of the court below is to be followed with respect to the part not guilty of the above reasons, and it is not judged separately in the trial.
2. Summary of reasons for appeal;
A. The Defendant, such as mistake of facts, committed sexual intercourse under the agreement with the victim and did not have sexual intercourse with the victim with a disability by force.
Nevertheless, the lower court found the Defendant guilty of this part of the facts charged on the grounds of the statement of the victim without credibility. In so doing, the lower court erred by misapprehending the legal doctrine and misunderstanding of facts (the defense counsel’s opinion, etc. submitted after the submission period for the grounds of appeal). (B) The sentencing of the lower court’s unfair sentencing is too unreasonable.
3. Determination
A. We examine ex officio prior to the judgment on the grounds for appeal by the defendant.
Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, before being amended by Act No. 15352, Jan. 6, 2018, Article 56 of the Act on the Protection of Children and Juveniles against Sexual Abuse, provides a facility, institution, or place of business under each of the following subparagraphs (hereinafter referred to as “child-related institution, etc.”) for a sex offense against a child or a sex offense against an adult (hereinafter referred to as “sex offense”).