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(영문) 서울고등법원 2013.05.03 2013노364

성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강간)등

Text

The judgment of the court below is reversed.

Defendant

A Imprisonment with prison labor for a maximum of four years, three years and six months and fine of 50,000 won, and Defendant B.

Reasons

1. Summary of grounds for appeal;

A. The lower court erred by misapprehending the legal doctrine and misunderstanding the legal doctrine that the Defendants were forced to exercise force on the ground of the fact that the Defendants did not work.

The Defendants did not exercise the force against the victim, and the victim was not exposed to the Defendants.

There was no forced force equivalent to the degree of violence or intimidation necessary for the establishment of the crime of rape.

B. The lower court’s sentence of unreasonable sentencing is too unreasonable.

2. Determination

A. The following circumstances found by the evidence duly adopted and investigated by the court below regarding the assertion of misunderstanding of facts and misapprehension of legal principles: (i) the victim stated that the defendant A was the ship of the school at the time of rape with the defendant, and that the defendant was unable to refuse the sexual intercourse because the defendant was able to do so at the school; (ii) the defendant A stated at an investigative agency that the defendant was sexual intercourse with the defendant at the school and that the defendant did not resist the victim because the defendant was recognized as 1 group; (iii) the defendants continued to contact the victim after the victim first sexual intercourse with the victim after the victim first sexual intercourse with the victim; (iv) the defendants continued to contact the victim with the victim; (v) the victim was unable to put the victim on the floor, forced to put him/her down his/her clothes; (v) the victim was off from the victim’s clothes; and (v) the victim took advantage of the victim’s sexual intercourse with the victim’s age during which he/she was sexually sexually sexually sexually sexually sexually raped.