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(영문) 서울고등법원 2019.05.21 2018노3543

성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강간등)등

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The defendant's appeal is dismissed.

Reasons

1. The trial scope of the original judgment (the first instance) rendered a judgment dismissing the prosecutor’s request regarding the part of the defendant’s case and the part on which the request for attachment order was filed, and as such, there is no benefit of appeal regarding the part on which the request for attachment order was filed, since only the defendant appealed.

Therefore, notwithstanding Article 9 (8) of the Act on Probation and Electronic Monitoring of Specific Criminal Offenders, the part regarding the request for attachment order is excluded from the scope of the trial of this court.

2. Summary of grounds for appeal by the defendant;

A. The statements made by the victim B of misunderstanding of facts and misunderstanding of legal principles (hereinafter "victim B") are not consistent with the specific period of sexual assault, and there is no consistency in the statements made by the victim B of 198, or in conflict with the statements made by the victim and comments made by the victim in light of the empirical rule, or the statements made by the victim and the comments made by the victim are inconsistent with those made by the victim, and there is no evidence

Nevertheless, the court below erred by misapprehending the legal principles or misconception of facts that found the guilty of each of the facts charged in this case based on the victim's statement.

B. The sentence imposed by the lower court on the Defendant (one-seven years of imprisonment, etc.) is too unreasonable.

3. Determination

A. As to the assertion of mistake of facts and misapprehension of legal principles, the defendant and his defense counsel argued to the same effect as the grounds for appeal in this part, and the court below, on this basis, explained in detail the circumstances as stated in its reasoning under the title “determination on the defendant and his defense counsel’s assertion” and determined that the defendant can recognize the facts of indecent act, sexual intercourse, and assaulting the victim as stated in the facts constituting a crime

Examining the circumstances duly admitted by the lower court in light of the relevant legal principles, comprehensively taking into account the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court and the lower court.