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(영문) 서울고등법원 2017.10.26 2017노2307

The judgment of the court below is reversed.

The case is remanded to the Seoul Northern District Court Panel Division.


1. Summary of grounds for appeal;

A. Defendant and the person who requested the attachment order (hereinafter “Defendant”) did not have sexual intercourse with the victim, asserting that the Defendant and the person who requested the attachment order (hereinafter “the person to whom the attachment order was requested”) were erroneous.

In addition, when the victim gets off the unscam and down on the floor on the unscambling side, the defendant reported that the name unscam, who was observed by the victim, was scambling from the victim's fingers, and did not take the counter-scam back to the victim in order to return the counter-scam to the victim, and the victim does not assault the victim and do not cut off his counter-scam to the victim.

2) At the time of committing the instant crime, the Defendant had mental and physical weakness with the mental retardation of Grade 3 intellectual disability and heavy alcohol dependence.

3) The sentence of the lower court (a punishment of eight years of imprisonment, 40 hours’ order to complete sexual assault treatment programs, and 5 years’ order to disclose or notify personal information) is too unreasonable.

B. Prosecutor: The lower court’s sentence that is unreasonable is too unhued and unreasonable.

2. Ex officio determination

A. The relevant legal doctrine is a system introduced to enhance democratic legitimacy and trust of justice (Article 1 of the Act). Since anyone has the right to a citizen’s participatory trial as prescribed by law (Article 3 of the Act), the case subject to a citizen’s participatory trial is in principle conducted according to the citizen’s participatory trial procedure in accordance with the law and its rules.

However, in exceptional cases where the defendant does not want a citizen participation trial or where a court makes a decision to exclude due to the grounds stipulated in each subparagraph of Article 9(1) of the Act (Article 5(1) and (2) of the Act). As such, whether to conduct a citizen participation trial is determined first by the defendant's will, and thus, if a case subject to a citizen participation trial is prosecuted, the court shall render the defendant a judgment.