(영문) 광주고등법원 2017.11.02 2017노241 | 리걸엔진

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Reasons

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글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 광주고등법원 2017.11.02 2017노241

강간등

Text

All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Judgment on the Defendant’s assertion of mistake of facts

A. The Defendant asserts that: (a) the Defendant did not have a sexual intercourse with the victim on April 19, 2016; (b) on April 24, 2016, the Defendant only did not assault or detain the victim; and (c) the Defendant did not have a sexual intercourse with the victim on April 24, 2016 under the agreement with the victim on April 24, 2016.

B. In a case where there is no new objective reason to affect the formation of conviction during the appellate trial’s trial process, and there is no reasonable ground to deem that the first deliberation judgment was clearly erroneous, or that the argument leading to the acknowledgement of facts was remarkably unfair due to the violation of logical and empirical rules, etc., the judgment on the recognition of facts in the first deliberation shall not be reversed without permission (see Supreme Court Decision 2016Do18031, Mar. 22, 2017). The Defendant asserted the same purport at the lower court, and the lower court asserted that the Defendant and the defense counsel’s assertion was the same.

2. The lower court rejected Defendant’s assertion on the grounds of the detailed circumstances in the item of “judgment” and found Defendant guilty of this part of the facts charged.

Examining the evidence legitimately adopted and examined by the court below in a thorough comparison with the circumstances admitted by the court below, there is no reasonable ground to deem that the judgment of the court below was clearly erroneous in this part of the judgment, or that the argument leading to the acknowledgement of facts is significantly unfair due to the violation of logical and empirical rules.

B. There is no objective reason to affect the formation of a documentary evidence in the course of this court's hearing.

This part of the judgment of the court below is justified.

Defendant

We do not accept the argument.

2. Judgment on the Prosecutor’s misunderstanding of the legal principles (the part not guilty in the court below)

A. The claimed victim had already been filed prior to the main case.

참조판례

-대법원 2017. 3. 22. 선고 2016도18031 판결

유사 판례

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