준강제추행
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
However, the above punishment for a period of two years from the date this judgment became final and conclusive.
1. Summary of grounds for appeal;
A. The Defendant, at the time of the instant crime, was under the influence of alcohol so as to have no or weak ability to discern things or make decisions.
B. The punishment of the lower judgment that was unfair in sentencing (the completion of a sexual assault treatment program for 6 months and 40 hours) is too unreasonable.
2. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
According to the records of this case, the lower court shall serve the Defendant with the summary of the indictment and a summons of the Defendant pursuant to Article 23 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (hereinafter “Litigation Promotion”), and shall proceed with deliberation without its statement, and shall be convicted on November 24, 2016. The Defendant’s defense counsel submitted a written request for recovery of the right of appeal and a petition of appeal to the lower court on December 7, 2016. The lower court may recognize the fact that it rendered a decision on recovery of the right of appeal by recognizing that the Defendant could not file an appeal within the period of appeal due to reasons not attributable to the Defendant on December 15, 2016.
According to the above facts of recognition, it is recognized that the defendant was unable to attend the trial of the court below due to the reasons that he could not be held responsible.
Since it appears, there are grounds for a request for a retrial under Article 23-2 (1) of the Litigation Promotion Act.
Therefore, the appellate court, as an appellate court, shall proceed with a new litigation proceeding, such as serving a duplicate of indictment, etc., and reverse the judgment of the court below and render a new judgment according to the result of a new trial (see Supreme Court Decision 2015Do8243, Nov. 26, 2015). Thus, the judgment of the court below cannot be maintained any more.
However, as above, the defendant's assertion of mental disorder is still subject to the judgment of this court even though there is a reason for reversal of authority.
3. The lower court duly adopted and investigated the determination on the assertion of mental disorder.