(영문) 서울고등법원 2015.04.09 2014노2968 | 리걸엔진

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줄 간격

자간(%)

(영문) 서울고등법원 2015.04.09 2014노2968

준강간등

Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment, as follows.

1) The kidnapping of sexual intercourse is limited to the case where the defendant discovered the victim who had been married with the taxi engineer, divided conversations with the victim, and divided them into the victim, and there is no fact at the time of the victim, and the victim cannot be deemed to have been in the state of mental or physical disability or failing to resist, and it is difficult to view that the victim was placed under the defendant's factual control, and it is difficult to view that the victim was in the state of mental or physical disability or failing to resist. 2) The victim did not have been kidnapped for the purpose of sexual intercourse. The victim was not in the state of kidnapping for the purpose of sexual intercourse. 2) The victim was asked in the toilet or the method where the victim was sexual intercourse for a short time, and there was no fact that the victim was sexual intercourse, and even if the defendant had sexual intercourse with the victim, there was no possibility that the victim was mistaken for the consent of the victim, so there was no intention to commit quasi-rape.

3) A thief is trying to find out the cell phone of the victim who is far away from his/her own vehicle, and there was no intention to commit a theft, and there was no fact that the other damaged goods were stolen besides his/her cell phone. B. The punishment sentenced by the lower court on the ground of unfair sentencing (the imprisonment of three years and six months) is too unreasonable.

2. Determination

A. In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court regarding the crime of kidnapping one sexual intercourse and quasi-rape on the assertion of misunderstanding of facts, the Defendant took the victim, who was in a state of being unable to make a normal judgment as to sexual acts, into the Defendant’s vehicle for the purpose of sexual intercourse with the victim who was in a state of being unable to make a normal judgment as to the sexual act, and the victim left from

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