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(영문) 서울고등법원 2014.09.05 2014노1615
아동ㆍ청소년의성보호에관한법률위반(강간)
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. 1) Unless the Defendant did not use assault and intimidation against the victim’s will, the lower court recognized that the Defendant, by misunderstanding the facts, committed assault and intimidation against the victim. 2) The Defendant attempted to add his/her sexual organ within the victim’s quality but did not actually add his/her sexual organ, thereby finding that the lower court erred by misapprehending the facts, thereby resulting in the crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape).

B. In light of the legal principles, the Defendant attempted to insert his or her sexual organ within the victim’s quality and suspended it according to the free will. Thus, the lower court erred by misapprehending the legal principles on attempted abandonment of the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape).

C. The court below's decision on the grounds of unfair sentencing (two years and six months of imprisonment, a short term of one year and six months) is too unreasonable.

2. Determination

A. 1) The defendant and his defense counsel argued the same purport as the above reasons for appeal in the court below. The court below held that the defendant and his defense counsel asserted the same purport as the above reasons for appeal. The defendant and his defense counsel asserted in the part of the "judgment on the defendant's and the defense counsel's assertion", the defendant's statement in the investigative agency or court of the court below is recognized credibility by consistently and specifically stating the damaged facts in the court of the court below, E (victim's friendship and the investigation agency, the victim's statement in the investigation agency or court of the court below conforms with the victim's statement in substitution, the victim's motive for a false complaint is hard to find, etc., the victim's physical appearance, etc. are a semen response voice, and the victim's DNA (DA) was not detected from the nature contents. However, this was made nine days after the victim suffered damage and the appraisal request was made nine days after the date of damage.

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