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(영문) 부산고등법원 (창원) 2015.02.04 2014노334
성폭력범죄의처벌등에관한특례법위반(친족관계에의한강제추행)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

Provided, That the above punishment shall be imposed for five years from the date this judgment becomes final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) As to each of the facts charged of this case, Defendant 1’s charges of this case, on the ground that the date and time of the commission of the crime was indicated only as “after the beginning of the day of the commission of the crime,” and “ around July 2013,” and it cannot be said that the facts charged were specified. As such, the procedure for instituting an indictment is in violation of the statutory provisions. 2) The sentence of imprisonment (two years and six months, etc.) sentenced by the lower court is too unreasonable

B. The above sentence imposed by the prosecutor by the court below is too uneasible and unfair.

2. Determination

A. The purport of Article 254(4) of the Criminal Procedure Act stipulating the date, time, place, and method of a crime is to limit the subject matter of the trial to the court and to facilitate the exercise of the right of defense by specifying the scope of defense against the defendant. Thus, considering the nature of the indicted crime, it is sufficient to specify the facts constituting the grounds for the indictment by stating the time, time, place, method, and purpose thereof to the extent that it can be distinguished from other facts. Even if some of the charges are unclear, the facts charged can be specified pursuant to other indicated matters. Thus, if the defendant’s exercise of his right of defense is not impeded, it does not affect the validity of the indictment (see, e.g., Supreme Court Decision 2012Do845, May 9, 2012). In other words, the victim continued to live in the child protection agency from the time when the defendant was 3 years of age to his/her her son and her son around September 6, 2013.

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