The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a term of one year and four months.

Sexual assault, 40 hours against the defendant.

1. Summary of grounds for appeal;

A. Although the Defendant voluntarily discontinued the instant crime by itself, the lower court erred by misapprehending the legal doctrine or by misapprehending the legal doctrine, it constitutes an attempted suspension under Article 26 of the Criminal Act.

B. The sentence imposed by the lower court (one year and six months of imprisonment) on the assertion of unfair sentencing is too unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. The lower court rejected the Defendant’s assertion of attempted rape on the grounds that it is difficult to view that the Defendant’s act of rape was discontinued even if there was no particular external disorder, on the following grounds: (a) the Defendant was out of the victim’s panty and panty, and the Defendant’s sexual organ was strongly resisted by the victim’s body and her body; (b) the Defendant temporarily suspended the crime upon the victim’s request; and (c) the Defendant went away from the scene after temporarily stopping the crime; and (d) the Defendant immediately went out of the stairs.

B. In a case where an act of commission of a crime subject to a trial is commenced and an act of commission of a crime is suspended by his/her own free will before the crime is completed, if the suspension is not due to circumstances that obstruct the completion of the crime under ordinary social norms, it constitutes an attempted suspension.

(대법원 1999. 4. 13. 선고 99도640 판결 참조). 원심이 적법하게 채택하여 조사한 증거들에 의하면, ① 이 사건 범행 당시 피고인이 직장동료인 피해자에게 샴푸를 주겠다고 말하며 피고인의 집 안으로 피해자를 데리고 들어간 사실, ② 그 곳에서 피고인이 피해자를 뒤에서 껴안아 피해자의 귓불과 목을 핥고, 이에 피해자가 “하지 말라”고 말하며...