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(영문) 서울고등법원 2018.09.13 2018노1605
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강제추행)
Text

The judgment of the court below is reversed.

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

The information on the accused is disclosed for a period of five years.

Reasons

1. Summary of grounds for appeal;

A. The Defendant and the person to whom the attachment order was requested (the Defendant’s part) 1: The Defendant and the person to whom the attachment order was requested (hereinafter “Defendant”) were in a state of mental and physical weakness due to alcohol ozone and drinking at the time of committing the instant crime.

2) Improper sentencing: The sentence of the lower court (two years and six months, etc.) is too unreasonable.

3) Unfair orders to disclose personal information: The court below's order to notify disclosure of personal information for a period of five years is also unjustifiable even though the defendant's risk of recidivism is not high.

B. The prosecutor (the part on which the request for attachment order was made) appealed the part on the defendant's case on the grounds of sentencing unfair, and the prosecutor revoked the allegation of the grounds for appeal as to the part on the trial date at the first trial of the first instance.

It is improper for the court below to dismiss the defendant's request for an attachment order of an electronic tracking device even though the defendant was highly likely to repeat the crime.

2. Determination

A. According to the records on the part of the Defendant’s case, the Defendant’s mental and physical weakness at the time of committing the instant crime is deemed to have served alcohol at the time of the instant crime. However, in light of the following: (a) the Defendant was deemed to have served alcohol at the time of committing the instant crime; (b) there was no objective data enabling the Defendant to verify the amount of drinking alcohol at the time; (c) the background leading up to committing the instant crime; (d) the means and method of committing the instant crime; and (e) the circumstances after committing the instant crime, the Defendant had the ability to

It does not seem that it does not appear.

B) Meanwhile, Article 10(3) of the Criminal Act provides that an act of a person who predicted the occurrence of danger and caused a person’s mental disorder shall not be subject to the preceding two paragraphs. However, this provision includes not only an intentional act but also an act of free in the cause due to negligence, and it can be predicted that the occurrence of danger was caused by a person’s mental disorder.

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