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(영문) 대법원 2018.04.12 2018도2243
성폭력범죄의처벌등에관한특례법위반(주거침입강간)등
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Examining the evidence duly admitted by the first instance court, which maintained the reasoning of the lower judgment in relation to the Defendant case, the lower court was justifiable to have determined that the Defendant was guilty of rape and attack among the modified facts charged on the grounds stated in its reasoning. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence by failing to exhaust all necessary deliberations, as alleged in the grounds of appeal, or by exceeding the bounds of the principle of free evaluation of evidence in violation

Meanwhile, according to the records and the reasoning of the lower judgment, the Defendant and the requester for an attachment order (hereinafter “Defendant”) appealed against the judgment of the first instance court, and asserted only unfair sentencing as to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes among the charges modified on the ground of appeal.

In such a case, the argument that the lower court erred by misapprehending the legal doctrine on the charge of a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape in Residence) is not a legitimate ground for appeal.

In addition, pursuant to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is imposed, and an appeal based on unfair sentencing is allowed. Thus, the argument that the amount of punishment is unfair is not a legitimate ground for appeal in this case where a more minor sentence is imposed against the defendant.

The defendant committed the crime of this case in the notice of the grounds for appeal. The defendant committed the crime of this case in the state of mental or physical loss or mental weakness (e.g., under the influence of alcohol or mental or physical weakness).

Inasmuch as the phrase “ merely stated” did not state specific grounds for this, this is not a legitimate ground for appeal.

2. An order to attach an electronic device, if the defendant files a final appeal with respect to the case for which the request for attachment order is filed;

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