(영문) 부산고등법원 (창원) 2016.07.20 2016노88

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(영문) 부산고등법원 (창원) 2016.07.20 2016노88

아동ㆍ청소년의성보호에관한법률위반(강간)등

Text

The judgment below

The guilty portion shall be reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

The defendant shall be 120 hours.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) misunderstanding of the facts and misapprehension of the legal doctrine (the point of quasi-rape on July 22, 2015), the Defendant committed a sexual intercourse under the agreement by the victimized person, and the Defendant did not leave the scene or request for rescue even when the Defendant temporarily left the scene, and thus, does not constitute quasi-rape.

Nevertheless, the lower court found the Defendant guilty of this part of the facts charged, by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2) The sentence sentenced by the lower court to the Defendant (a three years of imprisonment, 120 hours of order) is too unreasonable.

B. Prosecutor 1) The lower court acquitted the Defendant of this part of the facts charged, despite the fact that the victim was found guilty of the lower court, on the ground that the victim’s misunderstanding of the facts (the rape committed on June 1, 2015) continued to commit the crime of rape due to the Defendant’s assault and intimidation.

2) The sentence sentenced by the lower court against the Defendant is too unhued and unreasonable.

2. Determination

A. Determination 1 on the Defendant’s misunderstanding of the facts and misapprehension of the legal doctrine 1) In determining the credibility of the victim’s statement in support of the facts charged, the court shall, without permission, dismiss the victim’s statements, etc., unless there exist any other reliable materials that can see that the victim’s statement, including the victim’s witness, is objectively consistent and consistent with the facts charged, in light of the appearance and attitude of the witness, and the appearance of the witness who is going to the witness’s statement in the open court after being sworn at the presence of a judge, and the protocol of witness examination, such as the separation of the witness’s statement, which is difficult to record.

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