아동ㆍ청소년의성보호에관한법률위반(강간등)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
Sexual assault against the defendant for forty hours.
The summary of the grounds for appeal is as follows: (a) misunderstanding of the facts and misapprehension of the legal principles as to the facts of the crime No. 1 in the judgment of the court below; (b) admitting the facts of the crime No. 1 in the judgment of the court below, the degree of physical force of the defendant inflicted on the victim is limited to force and cannot be deemed to constitute violence or intimidation
Nevertheless, the judgment of the court below that recognized this part of the facts charged as an attempted rape against a child or juvenile is erroneous in the misapprehension of legal principles.
The punishment of the court below (4 years of imprisonment, etc.) which is unfair in sentencing is too unreasonable.
The prosecutor's (unfair sentencing) sentence of the lower court is too uncomparably unreasonable.
Whether there was assault or intimidation by a perpetrator to establish the legal principles related to the determination of the Defendant’s misunderstanding of the facts and misapprehension of the legal principles, shall be determined based on the specific situation in which the victim was faced at the time of sexual intercourse by comprehensively taking into account not only the content and degree of the assault and intimidation, but also all the circumstances such as the developments leading up to exercising force, the relationship with the victim, and the circumstances at the time of sexual intercourse and the post. From an ex post perspective, the mere fact that the victim could have escaped from the scene of the crime before sexual intercourse or the victim did not resist due to the misunderstanding of the legal principles does not necessarily lead to the extent that the perpetrator’s assault
There should be no way to readily conclude the crime (see Supreme Court Decision 2005Do3071, Jul. 28, 2005). In full view of all the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court’s judgment, including the relationship between the Defendant and the victim, the surrounding circumstances at the time of the case, and the circumstances leading to the crime, the Defendant tried to commit rape by exercising the force of force to suppress or significantly difficult resistance against the victim by excluding the victim’s panty, and panty.