(영문) 대구고등법원 2016.04.14 2015노677 | 리걸엔진

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(영문) 대구고등법원 2016.04.14 2015노677

성폭력범죄의처벌등에관한특례법위반(장애인위계등간음)등

Text

1. The part of the judgment below on the defendant is reversed.

2. The defendant shall be punished by imprisonment with prison labor for six years;

3. The defendant.

Reasons

1. Summary of grounds for appeal;

A. The sentence of the lower court (six years of imprisonment) against the Defendant and the person who requested the attachment order (hereinafter “Defendant”) is too unreasonable.

B. Prosecutor 1) The sentence of the lower court’s improper sentencing is too uneasible and unfair.

2) In light of the fact that the Defendant had sexual intercourses with intellectually disabled persons during several months, it is unreasonable to dismiss an attachment order even if there is a high risk of recidivism.

2. Determination

A. We examine ex officio the grounds for appeal by the Defendant and the prosecutor.

In the trial of the party, the prosecutor filed an application for permission to amend the Bill of Amendment to the Punishment of Violences, etc. Act with the name of the crime against the violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.) among the facts charged in the instant case as "special intimidation", and the applicable provisions of the law as "Articles 284 and 283 (1) of the Criminal Act" were amended as "Article 284 and Article 283 (1) of the Criminal Act." Since

Meanwhile, the lower court, on the other hand, deemed that this part of the facts constituting the crime and the remaining facts constituting the crime are concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced to a single punishment. Accordingly, the lower court should reverse not only this part of the facts

B. The risk of recidivism of a sexual crime as prescribed by Article 5(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders is not sufficient enough to repeat the crime, and it is highly probable that the person who requested the attachment order will depict the legal peace by committing a sexual crime again in the future.

The existence of the risk of recidivism of a sexual crime shall be determined objectively by comprehensively assessing various circumstances, such as the occupation and environment of the person requesting the attachment order, the motive and means of the crime, the circumstances after the crime, and the situation after the crime. Such a determination shall be made.

참조조문

-전자장치 부착 등에 관한 법률 제5조 제1항

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