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(영문) 서울고등법원 2019.05.24 2019노106
성폭력범죄의처벌등에관한특례법위반(주거침입강제추행)등
Text

The prosecutor's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The sentence sentenced by the lower court (4 years of suspended sentence for three years of imprisonment) is too unfasible and unfair.

B. It is unreasonable for the lower court to exempt the Defendant from disclosure and notification orders and employment restriction orders.

2. Determination

A. In a case where there is no change in the conditions of sentencing compared to the first instance court as to the unfair argument of sentencing, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, the appellate court should respect it.

(See Supreme Court en banc Decision 2015Do3260 Decided July 23, 2015). The lower court, as stated in its holding, determined the sentence by comprehensively taking into account the favorable circumstances and unfavorable circumstances for the Defendant.

The lower court recognizes that the prosecutor’s sentencing conditions, including the sentencing conditions asserted in the grounds of appeal, are determined appropriately by taking into account all important circumstances, and there is no change in the sentencing conditions that enable the lower court to change the sentence in the trial.

As such, the sentence of the lower court cannot be deemed to have exceeded the reasonable scope of discretion given to the lower court, and it is reasonable to respect the sentencing of the lower court, and thus, the Prosecutor’s assertion on this part cannot be accepted.

B. As to the unfair issuance of an order to disclose or notify personal information and an order to restrict employment, the lower court exempted the Defendant from both an order to disclose or notify personal information and an order to restrict employment, on the grounds as indicated in its reasoning, based on the fact that it is difficult to readily conclude that the instant case alone has a criminal tendency against many unspecified victims.

When comprehensively considering the circumstances revealed in the records and arguments of this case, including that the defendant had no criminal record, such judgment of the court below is justified, and the prosecutor's above assertion is without merit.

3. The appeal by the Prosecutor of the Conclusion.

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