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(영문) 부산고등법원 (창원) 2016.12.21 2016노333
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강간)등
Text

The judgment below

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

A defendant shall be punished by imprisonment for ten years.

The seized adult goods .....

Reasons

1. The court below rendered a judgment dismissing the prosecutor’s request for conviction against the accused case and the request for attachment order respectively.

With respect to this, only the defendant appealed, since there is no benefit in appeal as to the request for attachment order, notwithstanding Article 9 (8) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, the request for attachment order among the judgment of the court below is excluded from the scope of the trial of this court, and only the defendant case falls under the scope of the trial of

2. Summary of grounds for appeal;

A. The fact that a sexual intercourse with the victim was established at the time and place specified in paragraphs (1) and 2-A and (b) of the facts charged in the instant case of mistake of facts, but this did not exercise the force of assault, threat, etc. against the victim as a result of an agreement with the victim. Although there was a fact that each date stated in paragraphs (1) and (d) of the instant facts charged was entered in the victim’s house, it did not constitute rape or rape.

Nevertheless, the judgment of the court below which convicted all of the facts charged of this case on the ground that the second examination of suspect interrogation protocol and victim's statement with no credibility of admissibility of evidence are admitted as evidence because the actual authenticity is not proven and the right to refuse to make statements is not notified, and the judgment of the court below

B. The sentence imposed by the lower court on the Defendant (ten years of imprisonment, 120 hours of order to complete a program, and 3 years of order to disclose and notify, etc.) is too unreasonable.

3. Articles 3(1) and 15 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Etc. of Victims of the Act on the Protection of Children and Juveniles against Sexual Abuse, Articles 297 and 319(1) of the Criminal Act, and Article 7(5) and (1) and (6) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes after ex officio change of determination.

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