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(영문) 서울고등법원 2019.01.11 2018노2393
준강간
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

Sexual assault, 40 hours against the defendant.

Reasons

1. Summary of grounds for appeal;

A. The Defendant, by misunderstanding of facts or misunderstanding of legal principles, tried to insert the Defendant’s sexual organ into the victim’s negative organ, is merely an attempted attempt, and did not in fact inserting the Defendant’s sexual organ into the victim’s negative organ or anus.

Nevertheless, the judgment of the court below which found the defendant guilty of the charge of quasi-rape which inserted the victim's sexual organ into the victim's negative part and the resistance is erroneous in the misunderstanding of facts or misunderstanding of legal principles.

B. The sentence imposed by the lower court (three years of imprisonment) is too unreasonable.

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

A. The summary of the facts charged is as follows: (a) around 02:00 on January 28, 2018, the Defendant, along with three high school windows located in Yongsan-gu, Yongsan-gu, U.S., U.S. and U.S. and three years of age, including the victim E (n.e., woman, f., age 24) for drinking; (b) was traveling together with the victim in order to “Wang Game” while carrying out the “Wang Game” under the influence of drinking; (c) the Defendant was moving to Fel with the victim in order to “n.e., getting off and going in the fel; (d) the Defendant was under the influence of the Defendant, who was discharged from all of the clothes in the above Fhead toilets, and was able to resist by inserting the victim’s will and clothes; and (e) inserting the Defendant’s sexual organ on the part of the victim’s back to the victim’s back and inserting it into the victim’s port.

B. First of all, considering the following circumstances acknowledged by the court below and the evidence duly adopted and investigated by the court below as to whether the defendant inserted the Defendant’s sexual organ into the part of the victim’s sexual organ and committed the crime of quasi-rape, it is not sufficient to recognize that the evidence submitted by the prosecutor alone was the crime of quasi-rape by inserting the Defendant’s sexual organ into the part of the victim’s sexual organ, and there is no other evidence recognized otherwise.

Thus, there is no proof of crime in the charge of the above quasi-rape.

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