(영문) 서울고등법원 2018.02.02 2017노2875 | 리걸엔진

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(영문) 서울고등법원 2018.02.02 2017노2875

아동ㆍ청소년의성보호에관한법률위반(강제추행)

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The prosecutor's appeal is dismissed.

Reasons

1. The sentence imposed by the court below on the summary of the grounds for appeal (the imprisonment of eight months and the suspension of execution of two years) is deemed to be too unhued and unfair.

2. The crime of this case is deemed to have committed an indecent act by the Defendant, who is a juvenile who does not have any awareness at the bank, due to her left her m or her m or her m or her m or her m or her m or her m or m or her m or m or her m or m or her m or m or

On the other hand, the fact that the defendant acknowledges the crime and commits the mistake, the defendant is the first offender who has no criminal history, the degree of the type of the defendant's exercise of power is relatively weak, and there is a disability of class 3 of intellectual disability, etc. are favorable to the defendant.

In addition, if there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect it (see Supreme Court Decision 2015Do3260, Jul. 23, 2015). In full view of other circumstances that are the conditions of sentencing, such as the Defendant’s age, sex, environment, relationship with the victim, motive or circumstance of the crime, and circumstances after the crime, it is not difficult to deem that the sentence imposed by the lower court is too unfasible and thus exceeds the reasonable scope of discretion.

Therefore, the prosecutor's above assertion is without merit.

3. As such, the prosecutor’s appeal is dismissed in accordance with Article 364(4) of the Criminal Procedure Act, and it is so decided as per Disposition (see, e.g., Supreme Court Decision 2009Da14444, Apr. 1, 2009). However, it is evident that the failure of the Defendant to state the fact that the Defendant was in a mental and physical state at the time is in a mental and physical state from among the reasoning of the judgment below is an error. As such, the Defendant lacks the ability to discern things or make decisions due to intellectual disability and cerebrism

참조조문

-형사소송규칙 제25조 제1항

참조판례

-대법원 2015. 7. 23. 선고 2015도3260 전원합의체 판결

유사 판례

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