(영문) 대구고등법원 2015.06.11 2014노742 | 리걸엔진

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(영문) 대구고등법원 2015.06.11 2014노742

성폭력범죄의처벌등에관한특례법위반(주거침입강간등)등

Text

1. The judgment below is reversed.

2. The defendant shall be punished by imprisonment for a period of two years and six months;

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles (as to the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes) the Defendant only caused the victim's chest while checking whether the victim was diving at the time of the crime, and there was no intention to commit an indecent act against the victim.

B. The lower court’s sentence of unreasonable sentencing (three years of imprisonment) is too unreasonable.

2. Determination

A. We examine ex officio prior to the judgment on the grounds for appeal by the defendant for ex officio judgment.

In the trial of the court, the prosecutor applied for the amendment of the Act on the Aggravated Punishment, etc. of Specific Crimes to change the name of the crime to "Habitual larceny" among the names of the crimes charged against the defendant. However, in light of the criminal facts and the amended applicable provisions of the Act, this is deemed to be a clerical error of "Habitual Special Theft", and thus, it is corrected as above. "Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes" among applicable provisions of the Act applies for the amendment of the Act to "Article 332 of the Criminal Act." Since this court permitted the amendment, the judgment of the court below is no longer maintained in this regard.

However, the defendant's assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to the judgment of this court, which will be examined below.

B. “Indecent act” in the crime of indecent act by compulsion of the relevant legal principles regarding the Defendant’s mistake of facts or misapprehension of legal principles is objectively an act that causes a sense of sexual humiliation or aversion to the general public and is contrary to good sexual morality, and thus infringes on the victim’s sexual freedom. Whether it constitutes such an act is the victim’s intent, gender, age, relationship between the perpetrator and the victim’s prior interest, the background leading up to the act,

참조조문

-특정범죄 가중처벌 등에 관한 법률

-특정범죄 가중처벌 등에 관한 법률 제5조의4 제1항

-형법 제332조

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