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본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.
서울고등법원 2016.01.27 2015노2722
폭행등
Text

The judgment below

The part of the case of the defendant is reversed.

A defendant shall be punished by imprisonment for three years.

For the defendant.

Reasons

1. According to the evidence submitted by the prosecutor, the lower court found the Defendant and the person who requested the attachment order (hereinafter “Defendant”) guilty of sexual intercourse and assault by force against the victimized person, on the grounds that all the facts charged of the instant case were found guilty. However, the lower court determined that the lower court acquitted the victimized person by mistake of fact.

2. As to the defendant's case

A. The summary of the facts charged is as indicated in the column of “criminal facts” as stated in the judgment of the court below.

B. In full view of the circumstances indicated in its reasoning, the lower court determined that among the evidence that correspond to each of the facts charged in the instant case, the victim’s statement recorded in each video CD and each police statement made in each video recording CD against the victim are inadmissible as evidence, and even if admissibility of evidence is acknowledged, the victim did not appear in the court of the lower court even after being summoned as a witness, and there are considerable circumstances in which the victim would have doubts about the credibility of the victim’s statement, which alone is insufficient to consider as evidence of conviction. In so doing, it is insufficient to consider only the contents of the Kakao Stockholm conversation between the Defendant and the victim as the basis for recognizing each of the facts charged in the instant case, and it was determined that there is no other evidence to acknowledge

(c)

1) As to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (e.g., deceptive scheme), “power” in the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse refers to the ability sufficient to suppress the victim’s free will, and does not ask him/her either tangible or intangible, or intangible. As such, not only assault and intimidation but also a perpetrator’s social, economic and political status or political authority is possible. Whether a person has sexual intercourse with another person by force is determined by force or not, the content and degree of force exercised, the type of actor’s status or authority, the age of the victim, the relationship between the perpetrator and the victim, and the victim’s prior relation.