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(영문) 서울고등법원 2018.11.30 2018노2770
강간등
Text

Defendant

In addition, all appeals filed by the person who requested the attachment order and the prosecutor are dismissed.

Reasons

Summary of Reasons for appeal

A. The punishment (three years of imprisonment) sentenced by the court below to the defendant and the person who requested the attachment order (the part of the case of the defendant) and the person who requested the attachment order (hereinafter referred to as the "defendant") is too unreasonable.

2) Although there are special circumstances under which disclosure notification order and employment restriction order should not be disclosed or restricted, it is unreasonable for the lower court to order the Defendant to disclose or notify personal information for a period of five years and to restrict employment for a period of three years.

B. A prosecutor (the part concerning the case of the defendant and the case of the attachment order) 1) The sentence that the court below sentenced to the defendant is too uneasible and unfair.

2) It is unreasonable for the lower court to dismiss the Defendant’s request for an attachment order against the Defendant despite the risk of recommitting a sexual crime.

The part of the defendant case

A. Determination of unfair sentencing by the Defendant and the Prosecutor is based on statutory penalty, and determination of discretion is made within a reasonable and appropriate scope, taking into account the factors constituting conditions for sentencing under Article 51 of the Criminal Act, based on the statutory penalty.

However, considering the unique area of sentencing of sentencing of the first instance that is respected under the principle of trial priority and the principle of direct jurisdiction taken by our criminal litigation law and the nature of the ex post facto review of the appellate court, the sentencing of sentencing of the first instance was exceeded the reasonable scope of discretion when comprehensively taking into account the factors and guidelines for sentencing specified in the first instance sentencing trial process.

In light of the records newly discovered in the course of the appellate court’s sentencing hearing, it is reasonable to file an unfair judgment of the first instance court, only in cases where it is deemed unfair to maintain the sentencing of the first instance court as it is for the court to judge the sentencing of the first instance court.

In the absence of such exceptional circumstances, the first-class sentencing decision should be respected.

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