(영문) 서울고등법원 2014.02.06 2013노2348 | 리걸엔진

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(영문) 서울고등법원 2014.02.06 2013노2348

성폭력범죄의처벌등에관한특례법위반(강간등치상)등

Text

The judgment below

The guilty portion shall be reversed.

Defendants shall be punished by imprisonment for a maximum term of three years and six months, and a short term of three years.

Reasons

1. Summary of grounds for appeal;

A. In light of the fact that Defendants (1) - misunderstanding of facts - Defendant A and the victim I’s sexual intercourse were exposed to the victim’s sexual intercourse actively from the video where the sexual intercourse of the Defendant A and the victim I was taken, it is natural to view the victim’s sexual intercourse immediately before the sexual intercourse was committed and actively responded to the sexual intercourse. The victim’s statement is described in the first police investigation process by expanding the degree of damage up to the trial, and its credibility is reduced, and it is difficult to view the victim’s statement as being distorted and contaminated due to the victim’s exercise of influence over H. The victim’s sexual intercourse was committed under an agreement with the victim, but the victim’s sexual intercourse was committed under the agreement with the victim, and it was found that there was a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) among the facts charged in this case.

(B) In light of the fact that the video taken by Defendant C at the time of the crime of this case was taken from the victim’s list I, and that the victim did not recognize the Defendant C who had the video taken at the victim’s time of the crime of this case, the Defendant C taken the image of the sexual intercourse with the victim’s consent.

The judgment of the court below which found the defendant guilty of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes among the facts charged in this case is erroneous in the misconception of facts.

(2) The sentence imposed by the lower court on the Defendants (the maximum of four years and six months, and the short of four years) is too unreasonable.

B. A prosecutor (1) misunderstanding of facts - the victim H’s statement made to an investigative agency of the victim H is more reliable.

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