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(영문) 서울고등법원 2014.02.14 2013노3843
강간
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

Provided, That the above punishment shall be imposed for three years from the date this judgment became final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) Although the Defendant, at the time of the instant crime, was in a state of lacking the ability to discern things or make decisions, the lower court rejected Defendant’s claim of mental and physical disability. 2) The sentence (two years and six months of imprisonment) sentenced by the lower court to the Defendant on the ground of unfair sentencing is too unreasonable.

B. Prosecutor 1) The sentence imposed by the lower court against the Defendant on the allegation of unfair sentencing is too unfilled and unreasonable. 2) Although the Defendant’s wrongful assertion of the exemption from the disclosure order and notification order is likely to repeat a crime because sexual impulses have not been adjusted, the lower court did not issue the disclosure order and notification order to the Defendant.

2. Determination

A. Determination 1 on the Defendant’s claim of mental disability was also asserted to the same effect as the above grounds for appeal. In light of the following circumstances, the lower court rejected the Defendant’s claim on the ground that the Defendant did not seem to have reached a weak state of ability to discern things or make decisions under the influence of alcohol at the time of committing the instant crime, in view of the circumstances such as the background and method of the instant crime, the Defendant’s criminal conduct before and after the instant crime, and the Defendant’s development, etc., which are acknowledged by the evidence, the lower court rejected the Defendant’s claim on the ground that the Defendant did not seem to have reached a weak state of ability to discern things or make decisions. 2) In full view of the following circumstances acknowledged by the evidence adopted and examined by the lower court, it is difficult to view that the Defendant was

The Defendant, before committing the crime, tried to pay the alcohol value by using a physical card with the “E” phone prior to the crime, but the balance was insufficient, and the Defendant’s mother was unable to pay. The Defendant’s mother was the president of the said alcohol house by phoneing to the Defendant’s mother.

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