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(영문) 부산고등법원 2018.12.19 2018노364
성폭력범죄의처벌및피해자보호등에관한법률위반(주거침입강간등)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for five years.

The defendant shall be a child or juvenile-related institution, etc.

Reasons

1. Summary of grounds for appeal;

A. On the grounds delineated below, the court below found the Defendant guilty of the facts charged of this case, which erred by misunderstanding the facts or misunderstanding the legal principles.

(1) A victim was raped in the absence of such rape as described in the facts charged.

A false statement was made.

(2) Even if not,

Even if a direct evidence consistent with the facts charged results in the 2015 fingerprint appraisal that recognizes the identity between the two points of fingerprints taken from the knives of the excessive (hereinafter “the excessive”), which was put on the victim’s residential floor while escaping (hereinafter “the instant fingerprints”) and the Defendant’s fingerprints, and thus, it is difficult to readily conclude that the instant fingerprint and the Defendant’s fingerprint are identical inasmuch as there is an error in the outcome of the said fingerprint appraisal.

③ Even if the fingerprints and the Defendant’s fingerprints coincide, the possibility that the Defendant’s fingerprints had been left in the transition knife of the instant case cannot be ruled out due to the circumstance in which the Defendant’s fingerprints cannot be known regardless of the instant crime.

B. The punishment of the lower court (five years of imprisonment) is too unreasonable.

2. Article 56(1) and (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, which uniformly provides for the restriction on employment of institutions, etc. related to children and juveniles for ten years with regard to a child, juvenile, or adult sex offense, was amended by Act No. 15352, Jan. 16, 2018; and Article 56(1) and (2) of the same Act provides for the period of restriction on employment for each defendant within the scope of ten years in consideration of the severity of the offense, risk of recidivism, etc. while a court sentenced the punishment for an individual sex offense, and Article 3 of the Addenda to the above Act provides for the amendment of Article 56 of the same Act, which is the date on which the said Act enters into force, commits a sex offense and fails to obtain the final and conclusive judgment.

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