(영문) 서울고등법원 2019.03.15 2018노3592 | 리걸엔진

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(영문) 서울고등법원 2019.03.15 2018노3592

성폭력범죄의처벌및피해자보호등에관한법률위반(13세미만미성년자강간등)등

Text

Defendant

In addition, both the respondent for attachment order and the prosecutor's appeal are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Part 1 of the case of the defendant and the person to whom the attachment order was requested (hereinafter referred to as the "defendant")

(A) There is no mistake of fact that the Defendants committed an indecent act by compulsion or similarity of the victim.

In light of the fact that the statement of the victim, which is the evidence conforming to the facts charged, has a doubtful circumstance in the process of the complaint, it is difficult to understand the situation at the time of the crime, and it is not consistent.

Therefore, the judgment of the court below which admitted the facts charged as it is is erroneous.

B) The sentence imposed by the lower court (five years of imprisonment, etc. for each of five years) on the grounds that the Defendants of the prosecution are too poor and not against the nature of the crime, and thus, the lower court’s sentence is too uneasible and unreasonable.

B. It is unreasonable for the court below to dismiss the Defendants’ request for an attachment order against the Defendants even though the Defendants are highly likely to recommit a sex offense.

2. Determination

A. In light of the spirit of the substantial direct and psychological principle adopted by the Korean Criminal Procedure Act, the appellate court shall respect the first instance judgment as to the credibility of the statement made by a witness, unless there are exceptional circumstances to deem that the first instance judgment on the credibility of the statement made by a witness of the first instance was clearly erroneous (see, e.g., Supreme Court Decision 2006Do4994, Nov. 24, 2006). In addition, the appellate court shall respect the first instance judgment as to the credibility of the statement made by a witness, unless there are special circumstances to deem that the first instance judgment on the credibility of the statement made by a witness of the first instance was clearly erroneous (see, e.g., Supreme Court Decision 2006Do4994, Nov. 24, 2006).

Considering that the reasoning leading to the fact-finding is not against logical and empirical rules, there are reasonable grounds to view that it is remarkably unfair to maintain the judgment as it is.

참조조문

-형사소송법

참조판례

-대법원 2006. 11. 24. 선고 2006도4994 판결

유사 판례

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