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(영문) 서울고등법원 2016.04.28 2015노3645
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강간)등
Text

The defendant's appeal is dismissed.

Reasons

1. The court below rendered a judgment dismissing the prosecutor’s request regarding the part of the attachment order when it rendered a judgment of conviction on the part of the case of the defendant, and the defendant appealed only against this, and thus there is no benefit of appeal as to the part of the attachment order.

Therefore, notwithstanding the provisions of Article 9 (8) of the Act on the Protection and Observation of Specific Criminal Offenders and Electronic Monitoring, the part of the judgment below regarding the attachment order case is excluded, and the scope of the judgment of this court is limited to the part of the case of the defendant.

2. Summary of grounds for appeal;

A. 1) Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Acts by force against a minor under the age of 13) was committed by the Defendant, which did not make it impossible or considerably difficult for the Defendant to resist the victim, and the Defendant’s indecent act did not reach the degree of assault. As such, the Defendant’s crime of this part constitutes an indecent act on the minor’s agenda, and the lower court found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine and misapprehending the legal doctrine.

2) Since the Defendant’s violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape of minors under the age of 13) intimidation to the extent that the Defendant could not resist the victim, or without inserting his hand and sexual organ, and the Defendant’s abandonment of the crime was discontinued, the Defendant’s crime in this part constitutes an attempted rape of the minor, the lower court found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine and misapprehending the legal doctrine.

B. The sentencing of the lower court is too unreasonable.

3. Determination

A. Determination on the assertion of mistake of facts, etc. 1) The crime of indecent act by force is a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (an indecent act committed by a minor under the age of 13) that makes it difficult to resist by assault or intimidation against the other party.

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