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(영문) 부산고등법원 2013.09.26 2013노187
성폭력범죄의처벌등에관한특례법위반(장애인위계등간음)등
Text

The part of the judgment of the court of first instance and the judgment of the court of second instance are reversed.

A defendant shall be punished by imprisonment for eight years.

Reasons

1. Summary of grounds for appeal;

A. In the case of paragraph (1) of the judgment of the court below, the defendant and the person subject to a request for attachment order (hereinafter referred to as the "defendant") or misunderstanding of legal principles (hereinafter referred to as the "defendant") did not have a relation to direction and supervision over the victim K, and the defendant did not have threatened the above victim with the entries in the judgment. In the case of paragraph (2) of the judgment of the court of first instance, although the defendant had sexual intercourse at each time and place as stated in Paragraph (2) of the judgment of the court of first instance, he was committed under agreement with the victim, but did not have sexual intercourse or indecent act with the victim by committing an indecent act or by force against the victim in a state of non-performance. Nevertheless, the court of first instance found the first instance guilty of all the above facts charged. Thus, the court of first instance erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

3) In light of the various sentencing conditions in the instant case of unfair sentencing, the punishment imposed by each court below (the court below’s judgment: 8 years of imprisonment; 10 years of disclosure and notification of information; and 2 months of imprisonment): the illegality of an attachment order (the court below’s judgment) is too unreasonable. 4) Notwithstanding the fact that the Defendant did not have any habit of sexual assault and there is no risk of recommitting sexual assault, the court below’s order to attach an electronic tracking device for 10 years to the Defendant and impose any compliance accordingly.

B. In light of the various sentencing conditions in the instant case by the Prosecutor, the sentence of the lower judgment is too uneasible and unreasonable.

2. Determination of the accused case

A. As to the judgment of the court of first instance on the defendant's ex officio determination, the defendant and the prosecutor appealed respectively against the judgment of the court of second instance, and this court decided to hold a joint hearing on each appeal case.

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