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(영문) 서울고등법원 (춘천) 2017.03.29 2016노201
성폭력범죄의처벌등에관한특례법위반(장애인강간)등
Text

The defendant's appeal is dismissed.

Reasons

1. On the other hand, the lower court found the Defendant guilty of the facts charged, and rendered a judgment dismissing the prosecutor’s request regarding the case claiming the attachment order, and only the Defendant appealed, the part requesting the attachment order does not have any interest in appeal.

Therefore, Article 9(8) of the Act on the Protection and Observation of Specific Criminal Offenders, a legal fiction of appeal, does not apply (see, e.g., Supreme Court Decision 2010Do7079, 2010Do41, Aug. 19, 2010). As such, the part of the Defendant’s request for attachment order against the Defendant is excluded from the scope of the adjudication by the Korean court.

2. The summary of the grounds for appeal (unfair sentencing) that the lower court sentenced to the punishment (six years of imprisonment) is too unreasonable.

3. It is reasonable to respect the sentencing of the first instance court when there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion. Although the sentence of the first instance court falls within the reasonable scope of discretion, it is desirable to refrain from imposing a sentence that does not differ from the first instance court by destroying the first instance judgment solely on the ground that the difference between the opinion of the appellate court and the opinion of the appellate court (Supreme Court Decision 2015Do3260 Decided July 23, 2015). In light of the above legal principles, it is desirable to refrain from imposing a sentence that does not vary from the first instance court (Supreme Court Decision 2015Do3260 Decided July 23, 2015). In light of the above legal principles, there are some circumstances, such as the fact that the defendant committed a crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes in this case, the victim C (a person with disabilities) suffers mental damage that could not be recovered from the victims until now.

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