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(영문) 수원고등법원 2021.01.07 2020노516
아동ㆍ청소년의성보호에관한법률위반(준강간)등
Text

The judgment of the court below is reversed.

The defendant shall be punished by imprisonment with prison labor for not less than two years and three months.

40 hours per the defendant.

Reasons

1. The summary of the grounds for appeal (unfair sentencing) of the lower court’s sentence (an imprisonment with prison labor for a maximum of two years and six months, a short of two years, etc.) is too unreasonable.

2. An ex officio determination of the Defendant was made by the birth of AZ, and the Defendant was sentenced to an irregular term of punishment for falling under “juvenile” under Article 2 of the Juvenile Act at the time of the pronouncement of the lower judgment. However, in light of the calculation of the period, it is apparent that the Defendant was no longer a juvenile under the age of 19 and the Defendant did not constitute a juvenile under the age of 19. As such, the lower judgment that sentenced

3. The judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the defendant's unfair argument, on the grounds that the judgment of the court below is reversed ex officio, and it is again decided as follows.

[Grounds] The summary of facts constituting an offense and evidence recognized by this court is as follows. The summary of facts constituting an offense and the evidence admitted by this court is cited in accordance with Article 369 of the Criminal Procedure Act, except where the court below’s second public trial protocol “1. The partial statement of Defendant A in the second public trial protocol of 2019 Gohap 207” is deemed as “the Defendant’s statement in this court” as “the Defendant’s statement in this court’s first public trial protocol.” Thus, it is identical to the corresponding column of the court below’s judgment.

Application of Statutes

1. Relevant provisions of the Act on the Protection of Juveniles against Sexual Abuse, and Articles 7(4) and (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 299 of the Criminal Act (the occupation of juvenile quasi-rape and the choice of a limited imprisonment), Article 331(2) and (1) of the Criminal Act (the occupation of each special larceny), and Article 366 of the Criminal Act (the occupation of damaging property and the choice of imprisonment) concerning criminal facts;

1. The aggravated punishment for concurrent crimes prescribed in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (the aggravated punishment for concurrent crimes prescribed for the offense of violation of the Act on the Protection of Juveniles from Sexual Abuse, of which punishment is the largest);

1. Article 53 and Article 55 (1) 3 of the Criminal Act (Article 55 and Article 55 (1) 3 of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

1. The main sentence of Article 21 (2) of the Act on the Protection of Juveniles against Sexual Abuse;

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