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(영문) 대전고등법원 2018.06.08 2018노151
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자위계등간음)등
Text

The defendant's appeal is dismissed.

Reasons

1. The summary of the grounds for appeal (unfair sentencing) of the lower judgment’s sentencing (the imprisonment of eight years and the order to complete sexual assault treatment programs 120 hours) is too unreasonable.

2. The sentencing on the basis of a statutory penalty is a discretionary judgment that takes into account the factors constituting the conditions for sentencing prescribed in Article 51 of the Criminal Act within a reasonable and appropriate scope, on the basis of the statutory penalty.

However, considering the unique area of sentencing in the first instance that is respected under the principle of trial priority and the principle of direct jurisdiction in our criminal litigation law and the nature of the ex post facto review of the appellate court, the first instance sentencing judgment exceeded the reasonable scope of discretion when comprehensively considering the factors and sentencing criteria in the course of the first instance sentencing trial.

In light of the records newly discovered in the course of the appellate court’s sentencing hearing, it is reasonable to file an unfair judgment of the first instance court, only in cases where it is deemed unfair to maintain the sentencing of the first instance court as it is for the court to judge the sentencing of the first instance court.

Unless there exist such exceptional circumstances, it is desirable to respect the sentencing of the first instance trial (see Supreme Court Decision 2015Do3260, Jul. 23, 2015). The lower court sentenced the above sentence to the Defendant with due regard to the sentencing stated in its reasoning. The Defendant is deemed to have committed each of the crimes of this case, and the Defendant seems to have committed contingent acts, and the circumstances favorable to the sentencing of the Defendant, such as the Defendant’s poor growth process, family environment, etc., are already considered to have been determined in the lower court.

In addition, it is reasonable to respect the sentencing of the lower court, since there is no particular change in the conditions of sentencing in the trial.

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

3. The lower court’s ex officio determination on the period of registering personal information is based on its stated reasoning.

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