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(영문) 대전고등법원 2020.10.23 2020노289

준유사강간미수등

Text

The defendant and prosecutor's appeal are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The sentence of the lower court (two years of suspended execution in June of one year and six) is unreasonable.

B. Prosecutor 1) The lower court’s sentence of unreasonable sentencing is unreasonable as it is unfair. 2) It is unreasonable for the lower court to exempt the Defendant from the disclosure and notification order.

2. The determination of sentencing on the assertion of unfair sentencing by the Defendant and the prosecutor is based on the statutory penalty, and a discretionary judgment is made within a reasonable and appropriate scope, taking into account the factors constituting the conditions for sentencing under 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, the sentencing of the first instance court is deemed to have exceeded the reasonable scope of the discretion when comprehensively considering the conditions of sentencing specified in the process of the first instance sentencing deliberation and the sentencing criteria, or it is reasonable to maintain the sentencing of the first instance court in full view of the materials newly discovered in the course of the appellate court’s sentencing deliberation, etc., the determination of the first instance court shall be reversed in an unfair judgment.

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 Supreme Court en banc Decision 2015Do3260 Decided July 23, 2015). The lower court takes into account the following circumstances: (a) the crime of this case is bad in the nature of the crime; (b) the Defendant’s crime appears to have caused considerable mental impulse and sexual humiliation; (c) the Defendant is aware of and against the instant crime; (d) the Defendant recognized the Defendant’s criminal act; (c) the Defendant did not want the Defendant’s punishment by mutual consent with the victim; and (d) the Defendant did not have any particular criminal history favorable to the Defendant.