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(영문) 서울고등법원 (춘천) 2017.08.30 2017노79
성폭력범죄의처벌등에관한특례법위반(친족관계에의한강간)등
Text

The defendant's appeal is dismissed.

Reasons

1. The lower court rendered a judgment dismissing the prosecutor’s request regarding the part of the facts charged in the instant case against the Defendant, and regarding the part regarding which the request for attachment order was filed only by the Defendant. As such, the part regarding which the request for attachment order was filed has no interest in appeal, and thus, notwithstanding Article 9(8) of the Act on the Protection and Observation of Specific Criminal Offenders and Electronic Monitoring, this part is excluded from the scope of the trial by the Korean court.

2. The sentence imposed by the lower court (six years of imprisonment) on the summary of the grounds for appeal is too unreasonable.

3. It is desirable to refrain from rendering a sentence that does not change the conditions of sentencing compared with the judgment of the first instance court, and where the sentencing of the first instance does not deviate from the reasonable scope of discretion, it is reasonable to respect them. Although the sentence of the first instance falls within the reasonable scope of discretion, it is reasonable to refrain from rendering a sentence that does not vary with the judgment of the first instance court solely on the ground that the difference between the opinion of the appellate court and the opinion of the appellate court (see Supreme Court Decision 2015Do3260, Jul. 23, 2015). In light of the foregoing legal doctrine, it is desirable to refrain from rendering a sentence that does not differ from the judgment of the first instance court on the ground that the sentence of the first instance falls within the reasonable scope

Although victims and their parents do not want the punishment of the defendant, the sentencing criteria applicable to the defendant are as follows even if they are considered as special mitigation factors in determining the sentencing criteria.

1. Basic crime: Crimes of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape by Blood Relatives) [Type 2 (Rape/Special Rape, etc. by Blood Relatives) (Special Rape/Special Rape, etc. by Blood Relatives] / Victims vulnerable to the crime [the scope of the recommended sphere of punishment and the recommended range of punishment] basic area (five years or more of imprisonment) of rapes (subject to at least 13 years of age);

2. Concurrent crimes:

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