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(영문) 대구고등법원 2019.09.05 2019노300
성폭력범죄의처벌등에관한특례법위반(장애인강간)등
Text

The judgment below

The part of the defendant's case shall be reversed.

A defendant shall be punished by imprisonment for not less than three years and six months.

(b) the defendant;

Reasons

1. The court below rendered a judgment dismissing the prosecutor’s request regarding the accused case, the attachment order, and the probation order request.

Notwithstanding Articles 21-8 and 9(8) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders as there is no benefit in filing an appeal regarding the part of the claim for attachment order and probation order as the Defendant appealed only, this part is excluded from the scope of the trial (see, e.g., Supreme Court Decision 82Do2823, 82Ga611, Jan. 18, 1983). 2. Summary of the grounds for appeal

A. In the course of committing an indecent act or sexual intercourse with the victim, the Defendant merely uses the tangible power corresponding to the degree of power, rather than assault or intimidation to the extent that it makes it impossible or considerably difficult to resist the victim.

The judgment of the court below which found the defendant guilty of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, is erroneous in the misapprehension of legal principles.

B. The sentence imposed by the lower court (five years of imprisonment, 40 hours of completion of sexual assault treatment programs, and 5 years of restriction on employment in institutions related to children and juveniles) is too unreasonable.

3. Ex officio determination

A. Article 59-3(1) of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes has uniformly restricted employment of persons who were sentenced to punishment for sexual crimes under Article 2(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes or sex offenses against children and juveniles under Article 2 subparag. 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “sexual offenses”).

However, the Act on December 11, 2018.

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