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(영문) 부산고등법원 2018.01.17 2017노565
강제추행등
Text

The part of the judgment of the court of first instance and the part of the judgment of the court of second instance guilty shall be reversed.

Defendant shall be punished by imprisonment.

Reasons

1. Scope of adjudication;

A. Article 14(2) of the Act on the Medical Treatment, Custody, etc. is excluded from the scope of the judgment of the court below, notwithstanding the provision of Article 14(2) of the same Act, since the court below rejected the prosecutor’s request for the medical care and custody, and only the defendant appealed.

B. The 2nd judgment of the court below dismissed the public prosecution regarding the crime of assault against C among the facts charged. Since the defendant and the prosecutor filed an appeal only against the guilty part, the dismissed part of the public prosecution is separately and conclusively determined and excluded from the scope of the judgment of the court.

2. Summary of reasons for appeal;

A. Defendant 1) misunderstanding of the legal doctrine (the part of the judgment of the court below in the case of Defendant 1) was guilty that the Defendant committed an indecent act against the victims as shown in the facts charged. However, at the time of prosecution, the Defendant did not assault or threaten the victim P and R, and ② The victim N and Q did not in a state of mental and physical loss or resistance because they were not in a state of deep diving.

Therefore, even though the defendant's indecent act constitutes an indecent act in a public densely concentrated place under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, it does not constitute a crime of forced indecent act (victim P and R) and a crime of forced indecent act (victim N and Q).

However, the court below erred by misapprehending the legal principles on the establishment of the crime of coercion and the crime of forced indecent act by force, thereby finding the victim P and R guilty of the charge of forced indecent act and the charge of forced indecent act against the victim N and Q.

2) The location tracking electronic device attachment period (five years) of the first instance court’s decision that the attachment order was unfair (the part regarding the claim for attachment order in the first instance court’s judgment) is too unfair.

3) Improper sentencing (the part of the judgment of the court of first instance in the case of the defendant and the part of the judgment of the court of second instance in the judgment of the court of second instance), each of which the court of first instance pronounced (the first instance in the judgment of the court of first instance in the judgment of the court of first instance in the judgment of the court of second instance in the judgment

(b) Inspection (No. 2.).

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