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(영문) 대법원 2017.06.29 2017도5706
성폭력범죄의처벌등에관한특례법위반(친족관계에의한강간)
Text

The appeal is dismissed.

Reasons

The grounds of appeal are examined.

Examining the record, the lower court is justifiable to have rejected the Defendant’s assertion on the mental and physical weakness based on its stated reasoning.

In doing so, there was no error by misapprehending the facts or by misapprehending the legal principles as to mental disorder.

In addition, the argument that the judgment of the court below erred by violating the principle of balance of punishment and the principle of responsibility for the sentencing, which goes beyond the inherent limit of the sentencing discretion, is ultimately an unfair argument of sentencing.

According to Article 383 (4) of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is imposed, an appeal shall be allowed on the grounds of unfair sentencing.

In this case where a more minor punishment is imposed against the defendant, the argument that the amount of punishment, including the above argument, is unfair is not a legitimate ground for appeal.

Other grounds of appeal by the defendant are not legitimate grounds of appeal since the defendant alleged as grounds of appeal or the court below's decision was not subject to judgment ex officio.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

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