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(영문) 서울고등법원 2019.09.26 2019노1741
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강제추행)
Text

The prosecutor's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The lower court’s sentencing is too unjustifiable and unreasonable.

B. Although it is necessary to disclose and notify the personal information of the criminal defendant who was unjustly exempted from the disclosure notification order, it is improper that the court below did not issue an order to disclose information to the criminal defendant.

2. Determination

A. As to the assertion of unfair sentencing, the term “unfair sentencing” refers to cases where the sentence of the lower judgment is too heavy or too minor in light of the specific contents of the case. The sentencing is based on the statutory penalty, and the discretionary judgment takes place within a reasonable and reasonable scope, taking into account the factors attached to the sentencing prescribed in Article 51 of the Criminal Act, based on the statutory penalty, and there exists the inherent area of the first instance court in relation to the determination of sentencing. In addition, in light of these circumstances and the ex post facto nature of the appellate court, if there is no change in the conditions of sentencing compared with the first instance court, and the first instance court’s sentencing does not deviate from the reasonable scope of discretion, it is reasonable to respect such a case (see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015). The crime of this case is an indecent act by compulsion of the Defendant’s sexual nature by force against the victim’s age, and it is obviously acknowledged that the Defendant and the victim did not suffer from mental impulse or from the victim.

However, it is difficult to view that the sentencing of the lower court exceeded the reasonable scope of discretion, because the Defendant fully recognized the instant crime, divided and reflected the mistake, and the Defendant appears to have no criminal record prior to the instant crime.

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