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(영문) 서울고등법원 2013.08.30 2013노1927
성폭력범죄의처벌등에관한특례법위반(주거침입강간등)
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

Reasons

1. Summary of grounds for appeal;

A. Under the victim’s implied consent on the day of the instant case, the Defendant entered the 207 motherel where the victim was divingd, and even if the victim’s actual intent differs, the Defendant did not have the intention of intrusion because it was in any other situation where it was impossible to think that the victim would consent.

In addition, the Defendant, even in the previous cases, was engaged in the act of divinging the victim's chest while divinging together in the part of the victim's room and drinking the victim's chest. Therefore, the Defendant only attempted sexual contact to the victim on the day of the instant case (at the time, the Defendant started sexual intercourse with the victim's idea that the victim would have sexual intercourse but suspended the victim's refusal) and there was no assault or intimidation to the extent that the victim's intent to rape would suppress the victim's resistance.

B. The sentence of imprisonment (two years of imprisonment) imposed by the court below on the defendant is unreasonable.

2. Determination

A. Determination of the misunderstanding of facts and legal scenarios 1) The Defendant admitted the fact that the Defendant entered the guest room 207 at the time of the instant case using Turkey, and the witness K, who is the operator of the telecom, also stated in the original court that the Defendant opened a 207 room with Turkey upon the Defendant’s request from the Defendant at the court of original instance that “I will see the question?” and opened two guest rooms at the 207 room. In this regard, the Defendant stated that there was two guest rooms at the 209 room, and that I (the victim’s relative) and G (the Defendant’s relative was in a good atmosphere as he had sexual contact.

Therefore, each of the statements in the original trial court, in the witness I and G, shall be included.

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