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(영문) 서울고등법원 2019.09.19 2019노1262

아동ㆍ청소년의성보호에관한법률위반(위계등간음)

Text

The judgment of the court below is reversed.

Defendant shall be punished by imprisonment for a term of four years and six months.

Sexual assault, 80 hours against the defendant.

Reasons

Summary of Grounds for Appeal

Defendant

The defendant did not have an opportunity to observe the victim of misunderstanding of facts for a considerable period near the victim of misunderstanding of facts or to talk in depth, and the defendant did not know that there was a mental disability.

The evidence alone examined by the court below is insufficient to recognize it.

There is insufficient evidence to view that the defendant had sexual intercourse with the victim by exercising power.

피고인은 피해자가 피고인을 찾아와 피고인의 신체를 애무하자 엉겁결에 피해자의 가슴과 음부를 만졌을 뿐이다.

The statements of the victim are generally reliable.

In the case of the victim's negative records, the defendant's DNA was not detected, and there is no objective evidence to support the victim's statement.

The lower court that recognized the facts constituting an offense solely with the statement of the victim who is doubtful of credibility.

Therefore, the judgment of the court below which recognized that the defendant had sexual intercourse with the victim by force knowing that the victim was mentally disabled.

The sentence of unfair sentencing (one year and six months of imprisonment) by the lower court is too unreasonable.

The lower court’s sentence of the prosecutor (e.g., e., e., g., e., e.

The defendant alleged the same purport as the above grounds for appeal even in the court below's decision on the mistake of facts.

In regard to this, the lower court determined that the Defendant could fully recognize the fact of sexual intercourse with the victim by force under the circumstances described in Articles 4 through 12 of the lower judgment, on the grounds of credibility in the statement of the victim and by force when the Defendant knows that the victim has a mental disability.

In light of the evidence duly admitted by the court below, this judgment of the court below is fully acceptable.

There is no error of misconception of facts in the judgment below.

The defendant's promise was made after the victim met with the O, which is the defendant's wife.