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(영문) 광주고등법원 2020.04.09 2019노486

성폭력범죄의처벌등에관한특례법위반(장애인강간)등

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Defendant

In addition, the appeal by the person who requested the attachment order is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The sentencing of the lower court’s sentencing is too unreasonable. 2) It is unreasonable to order the unfair Defendant and the person against whom the attachment order was requested (hereinafter “Defendant”) to disclose and notify personal information.

B. It is unreasonable for the court below to impose an attachment order on the defendant, since it is difficult to view that the defendant's recidivism risk is high.

2. Determination of the accused case

A. As to the assertion of unfair sentencing, the sentencing on the basis of statutory penalty is a discretionary judgment that takes place within a reasonable and reasonable scope, taking into account the factors constituting the conditions for sentencing as prescribed in Article 51 of the Criminal Act.

However, considering the unique area of sentencing of the first instance court that is respected under the principle of trial priority and the principle of directness taken by our Criminal Procedure Act and the nature of the ex post facto review of the appellate court, it is reasonable to reverse the unfair judgment of the first instance court only in cases where it is deemed that the judgment of the first instance court exceeded the reasonable scope of discretion when comprehensively considering the conditions of sentencing in the course of the first instance sentencing review and the sentencing criteria, etc., or where it is deemed unfair to maintain the first instance sentencing as it is in full view of the materials newly discovered in the course of the appellate court’s sentencing review.

In the absence of such exceptional circumstances, it is desirable to respect the sentencing of the first instance court in the absence of such exceptional circumstances.

(see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015). Circumstances alleged by the Defendant as an element of sentencing in this Court appear to have been revealed in the hearing process of the lower court or considering the lower court’s determination of the sentence against the Defendant. There is no particular change in circumstances in the sentencing guidelines with the matters that are the conditions of sentencing after the lower judgment was sentenced.

The Defendant committed each of the instant crimes at the lower court.