성폭력범죄의처벌등에관한특례법위반(특수준강간)
The judgment of the court below is reversed.
Defendant
A Imprisonment with prison labor for three years and for two years and six months, respectively.
except that this shall not apply.
1. Summary of grounds for appeal;
A. Defendant A1) misunderstanding of facts and misunderstanding of legal principles do not constitute a conspiracy of quasi-rape between Defendant B and the victim. Defendant A was unable to fully recognize the act that Defendant B could facilitate the sexual intercourse with the victim at the time of her sexual intercourse. Nevertheless, the lower court’s judgment that found the Defendants guilty of this part of the facts charged on the ground that the Defendants were joint criminals was erroneous in misunderstanding of facts and misunderstanding of legal principles. 2) The sentence of imprisonment (three years of imprisonment, etc.) sentenced by the lower court of unfair sentencing
B. The punishment sentenced by the lower court (a long-term three years of imprisonment, and a short-term two years and six months of imprisonment) is too unreasonable.
2. Determination
A. According to the ex officio judgment records on Defendant B, Defendant B, as Defendant B’s student, had “juvenile” as provided in Article 2 of the Juvenile Act at the time of the pronouncement of the judgment of the court below, but when this decision was declared, it became adult. Thus, the part of the judgment of the court below that sentenced Defendant B to mitigation of juvenile offenses on the ground that the above Defendant was a juvenile under the Juvenile Act and sentenced to an irregular sentence
B. As to Defendant A’s assertion of misunderstanding of facts: (a) In order to constitute “where two or more persons jointly commit a crime under Article 299 of the Criminal Act” under Article 4(3) and Article 4(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the Defendants shall jointly and severally share the commission of the crime; (b) in the event that the intent of joint process of the crime is mutually common and personally and individually provided with the intent to commit the crime, the conspiracy is established; and (c) if there was time and place cooperative relationship, it is recognized that the commission of the crime was shared if there was time and place of cooperation (see, e.g., Supreme Court Decision 201Do4618, Jun. 9, 2016).