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(영문) 대법원 2018.09.13 2018도9288
성폭력범죄의처벌등에관한특례법위반(특수준강간)등
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Examining the reasoning of the lower judgment on the grounds of Defendant A’s appeal in light of the evidence duly admitted, the lower court was justifiable to have found Defendant A guilty of the charge of quasi-rape of the victim I of the instant charges on the grounds indicated in its reasoning. In so doing, the lower court did not err by failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal, by exceeding the bounds of the principle of free evaluation in violation of logical and empirical rules, or by misapprehending the legal doctrine

2. As to Defendant B’s ground of appeal

A. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court is justifiable to have determined that all of the facts charged against Defendant B was guilty on the grounds indicated in its reasoning and rejected the assertion on mental and physical weakness.

In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation against logical and empirical rules, or by misapprehending the legal doctrine on rape, necessary mitigation grounds, and mental and physical weakness, without exhausting all necessary deliberations, as alleged in the grounds of appeal.

In addition, the argument that the lower court erred in violating the principle of accountability in the determination of sentencing is ultimately unfair.

Therefore, under Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, an appeal may be filed on the grounds of unfair sentencing. As such, in this case where Defendant B was sentenced to minor punishment, the argument that the determination of punishment is unfair is not a legitimate ground for appeal.

In addition, Defendant B’s remaining grounds of appeal are not legitimate grounds of appeal, since the court below asserted that this is the grounds of appeal, or that this is not subject to judgment ex officio.

3. Therefore, all appeals are to be filed.

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