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(영문) 대전지방법원 2019.10.02 2019노2265
준강제추행
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

The defendant shall be treated for 40 hours of sexual assault.

Reasons

1. Summary of grounds for appeal;

A. The prosecutor (unfair punishment) of the lower court (10 months of imprisonment, 40 hours of order to complete sexual assault treatment programs, 3 years of restriction on employment) is too uneased and unfair.

B. Defendant 1) At the time of misunderstanding of facts and misunderstanding of legal principles, the victim did not locked and did not resist, and the Defendant did not commit an indecent act against the victim in the same manner as indicated in the instant facts charged, and there is an error of misunderstanding of facts and misunderstanding of legal principles in the judgment of the court below which convicted the above facts charged. 2) The sentence of the court below on

2. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

A. In the event the victim had sexual intercourse with the victim by recognizing that the victim was unable to resist due to the victim’s sleep or to resist, and with the victim’s intention to have sexual intercourse with the victim, it cannot be said that the occurrence of the constituent consequence prescribed in the crime of quasi-rape was impossible from the beginning and that such consequence was actually achieved, in fact, due to the means of the commission of the crime or the mistake of the subject. Although the Defendant commenced the commission of quasi-rape, the crime did not reach the number of crimes, there was an attempted crime of quasi-rape (see, e.g., Supreme Court Decisions 2015Do7343, Aug. 13, 2015; 2018Do1602, Mar. 28, 2019). In light of the above legal principles, the victim thought that the victim was a potential person at the time of the instant case, and the victim’s statement was not clear at the time of the victim’s failure to resist (see, e.g., Supreme Court en banc Decision 2009Do4).

As such, at the time of the case.

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