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(영문) 서울고등법원 2020.02.06 2019노2603

간음약취등

Text

All appeals filed by the defendant and prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) In relation to the crime of 2019Dahap216 as indicated in the judgment of the court below, such as erroneous determination of facts, Defendant 1 did not recognize that: (a) the Defendant had the victim who was seated on the roadside so that he would rework again; (b) the Defendant did not move the victim to the office of the Defendant for the purpose of sexual intercourse; and (c) the Defendant did not have a sexual intercourse with the victim merely attempted to engage in sexual intercourse with the Defendant and responded to it with the Defendant’s body, and did not recognize that the victim was in the state of failing to resist by drinking alcohol at that time; (d) the lower court did not recognize that the victim was in the state of failing to resist by drinking. Nevertheless, the charge concerning this part of the facts charged

(2) The lower court erred by misapprehending the legal principles or misunderstanding of facts. (2) The lower court’s sentencing is too unreasonable.

B. Prosecutor 1) The sentencing of the lower court is unreasonable because it is too uneasible that the sentencing of the lower court is unreasonable.2) The lower court’s failure to issue an order to disclose information to the Defendant and to issue an employment restriction order against the Defendant, which was unreasonably exempted from disclosure order

2. Determination

A. As to the Defendant’s assertion of mistake of facts, etc., the lower court also asserted that the Defendant is identical to the assertion of mistake of facts, etc., and the lower court rejected the aforementioned assertion by making a detailed statement on this determination.2) The crime of kidnapping sexual intercourse under Article 288(1) of the Criminal Act is established at the time of kidnapping the victim for the purpose of sexual intercourse, etc., and the crime of kidnapping sexual intercourse under Article 288(1) of the Criminal Act refers to the freedom of body or life of the kidnapped person as the protected legal interest. In addition, in light of the content of Article 288(1) of the Criminal Act and the prior meaning of “compacting”, “the purpose of adultery” as referred to in the crime of kidnapping sexual intercourse refers to