(영문) 광주고등법원 (전주) 2020.06.26 2020노61

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(영문) 광주고등법원 (전주) 2020.06.26 2020노61

성폭력범죄의처벌등에관한특례법위반(장애인강간)등

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[Defendant A] The guilty part of the judgment of the court below against Defendant A (including the acquittal part in the reason) shall be reversed.

Defendant .

Reasons

1. Of the facts charged in the instant case, the lower court sentenced Defendant A to the dismissal of prosecution as to intimidation against the victim C, and among the lower judgment, the lower court did not file an appeal against the dismissal of prosecution against the said Defendant and the prosecutor.

Therefore, the dismissal of public prosecution for which no appeal has been filed is separated and confirmed as it is, it is excluded from the scope of adjudication of this court.

2. Summary of grounds for appeal;

A. According to the mistake of facts and misapprehension of legal principles (not guilty part of the original trial), Defendant A and the victim D’s statements, etc., Defendant A intentionally committed this part of the crime by rapeing the victim D. Nevertheless, the judgment of the court below which acquitted the Defendant of this part of the charges on the ground that there is no proof of crime, is erroneous in the misunderstanding of facts or misapprehension of legal principles. 2) The judgment of the court below which acquitted the Defendant of this part of the charges on the ground that there is no evidence of crime, is erroneous in the misapprehension of legal principles.

B. Defendant A1) misunderstanding of facts (originally, 2019 Highly, 195)

(1) Defendant A, as stated in this part of the facts constituting an offense, has a dancing for the victim D as well as the chest of the said victim by hand, put his finger into the panty line of the said victim and put his finger into the drinking part of the said victim. However, this is an act by the above victim’s consent, and there was no violence to the extent that the above victim’s resistance is suppressing. (2) The sentence of unfair sentencing decision by the court below is unreasonable because it is too unreasonable.

3. Determination

A. On May 4, 2019, at around 23:00 on May 4, 2019, Defendant A, a summary of the facts charged, as to the prosecutor’s assertion of mistake of facts and misapprehension of legal principles, provided accommodation together with Defendant A’s mother-child and punishment, C, and victim D.

3.2

유사 판례

-대구지방법원 2016.11.18 2016노1208

-서울고등법원 2019.01.25 2018노2172

-대구지방법원 2019.02.15 2018노4450

-서울고등법원 2019.12.12 2019노2313

-창원지방법원 2020.04.24 2019노2148