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(영문) 부산고등법원 2017.07.26 2017노252
아동ㆍ청소년의성보호에관한법률위반(위계등간음)등
Text

The judgment below

Of them, the part on Defendant E shall be reversed.

Defendant

E Imprisonment with labor for a maximum of two years and six months, and short of one year and six months.

Reasons

1. Summary of grounds for appeal;

A. Defendant A1) The Defendant was under the influence of alcohol at the time of committing each sexual intercourse, and thus, was in a weak state with the ability to discern things or make decisions.

2) The sentence sentenced by the lower court to the Defendant (five years of imprisonment) is too unreasonable.

B. Defendant B1) misunderstanding of the facts or misapprehension of the legal doctrine (as to the crime of joint threat of force against the victim Q Q), the Defendant did not have any conspiracy of sexual intercourse with Defendant A, D, and E in advance, nor did Defendant A et al. recognize that the victim had sexual intercourse with the victim. Defendant A et al. did not recognize that the victim had sexual intercourse with the victim with the victim under the mutual consent of the victim with the intent to associate with the victim, but did not exercise a clear tangible power. Therefore, the Defendant did not bear a liability for the crime of joint threat of force.

2) The sentence sentenced by the lower court to the Defendant (two years and six months) is too unreasonable as the sentence is too unreasonable.

C. Defendant C, D, E, or F’s punishment (i.e., Defendant C, and D: imprisonment for a maximum of two years and six months, a short of two years and six months, a short of two years, Defendant E: imprisonment for a maximum of three years and six months, a short of three years, a short of three years, and Defendant F) imposed on the Defendants is too unreasonable.

(d)

The sentence imposed by the prosecutor by the court below to Defendant A, B, and C is too unhued and unfair.

2. Determination

A. According to the record as to the Defendant A’s argument of mental and physical weakness, the fact that the Defendant had drinking alcohol at the time of committing each sexual intercourse as stated in the judgment of the court below is recognized, but such circumstance alone alone led to a lack of ability to discern things or make decisions.

It is difficult to see, and there is no other evidence to recognize it.

Defendant’s assertion is without merit.

B. (1) In order to establish a joint principal offender under Article 30 of the Criminal Act, Defendant B’s assertion of misunderstanding of facts or misapprehension of the relevant legal doctrine, Defendant B’s intent to jointly process, which is a subjective requirement, and functional control based on the joint doctor.

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