성폭력범죄의처벌등에관한특례법위반(친족관계에의한준강간)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for seven years.
Sexual assault against the defendant for 120 hours.
At the time of each of the instant crimes, the Defendant was in a state that he/she lacks the ability to discern things or make decisions under the influence of alcohol.
The punishment sentenced by the court below (7 years of imprisonment, 120 hours of completion of sexual assault treatment program) is too unreasonable.
Judgment
The court below determined ex officio the defendant guilty of each of the facts charged of this case in accordance with the procedure of deciding and notifying that the defendant should be tried through a simple procedure of trial by deeming that all of the facts charged of this case was led to confession.
According to the records, while the defendant's defense counsel acknowledged all facts charged on the first trial date of the court below, the second trial date of the court below cannot be memoryed even if "the act of being drunk due to the impossibility of personnel affairs, which was due to alcohol" on the second trial date of the court below.
“The Defendant alleged to the effect that he had committed a crime under the influence of alcohol in the original trial on the grounds of appeal.
In light of the fact that the defendant alleged as the ground of appeal that he did not have been recognized as having been able to have suffered mental or physical loss, it can be deemed that the defendant alleged as the ground of denial of responsibility for mental or physical loss (see Supreme Court Decision 2004Do2116, Jul. 9, 2004, etc.). Accordingly, each of the facts charged in this case is not subject to a trial by a simple procedure of trial, and as long as the court below revoked the decision of the court below that this court decided to a simple procedure of trial in accordance with the defendant alleged as the ground of appeal for mental or physical weakness in the trial.
However, despite the above reasons for reversal of authority, the defendant's argument of mental and physical weakness still remains subject to the judgment of this court.
According to the evidence duly admitted and examined by the court below as to the argument of mental and physical weakness, it is recognized that the defendant had a certain degree of drinking with the victim at the time of each of the crimes in this case, but the defendant is also guilty.