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부산고등법원 2016.12.14 2016노643
강간상해등
Text

Defendant

In addition, the appeal by the person who requested the attachment order is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Although the Defendant and the respondent for an attachment order (hereinafter “Defendant”) committed an indecent act on the part of the victim in the toilet, there is no fact that rape was committed, although the Defendant and the respondent for an attachment order (hereinafter “Defendant”) committed an indecent act on the part of the victim.

B. The sentence of the lower court on the assertion of unfair sentencing (five years of imprisonment) is too unreasonable.

C. In light of the degree of the Defendant’s act, there are special circumstances that need not disclose and notify the Defendant’s personal information, taking into account the following: (a) the Defendant committed the crime of rape and bodily injury resulting from the rape; and (b) the Defendant

It is improper that the court below sentenced the defendant to an attachment order for a location tracking device for 10 years, although the defendant does not pose a risk of recidivism.

2. Determination on the part of the defendant's case

A. Although the lower court acknowledged this part of the facts charged at the lower court’s judgment on the Defendant’s assertion of mistake of facts, it is denied that the Defendant was guilty of this part of the facts charged. However, the victim M consistently made a statement that corresponds to this part of the facts charged by the evidence duly admitted and investigated by the lower court, namely, the following circumstances acknowledged by the lower court: (a) the victim M has been consistently adopted at an investigative agency; and (b) the victim was unable to make a statement to the effect that “(the Defendant was at least 10% of water level on the toilet floor at the time when she was laid down in the toilet, but he was raped on the above, and thus, he/she continued rape while drinking water; and (c) he/she was sold on his/her her hand, and thus, he/she could not raise any difference in the evidence record (No. 83, 84, 198, 199).”