(영문) 서울고등법원 2016.01.15 2015노2762 | 리걸엔진

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(영문) 서울고등법원 2016.01.15 2015노2762

성폭력범죄의처벌등에관한특례법위반(친족관계에의한준강간)등

Text

All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. According to the evidence submitted by the prosecutor, the victim did not clearly indicate his intention of refusal due to low cadastral level, and even if the defendant did not consent to sexual intercourse with the defendant, the defendant is recognized as having sexual intercourse against the victim's will.

However, the judgment of the court below that found this part of the facts charged as not guilty is erroneous by mistake of fact.

2) The sentence of the lower court’s improper sentencing is too unhued and unreasonable.

B. Defendant 1) The Defendant misunderstanding the fact that the Defendant was the victim.

In addition, there is no fact that the victim only reads the victim's vessel, and there is no fact that the victim's sound is disturbed.

2) The sentence of the lower court’s improper sentencing is too unreasonable.

2. Determination

A. Determination 1 on the Prosecutor’s assertion of mistake of facts in this part of the facts charged is based on the relationship between the victim and the third degree of relationship, as the main point of this part of the facts charged is as follows: (a) the Defendant is a great child of the victim C

On April 11, 2014, from around 23:00 to April 03:00 on April 12, 2012, 2014, the Defendant had sexual intercourse with the victim by drinking alcohol from the Defendant’s house F and 202, and by drinking alcohol from the victim and 2, from the victim’s room to his/her own room, and by reporting the victim to the victim, he/she was under the influence of drinking alcohol.

Accordingly, the defendant had sexual intercourse with the victim by taking advantage of the victim's resistance impossible condition, which had been under the influence of alcohol.

2) The lower court determined as follows based on the evidence adopted and examined by the lower court, i.e., (i) the injured person’s drinking alcohol does not considerably exceed the amount of the ordinary victim’s drinking, and (ii) the injured person’s sexual intercourse after drinking alcohol.

Even if so, it is difficult to determine the mind of the injured party under the influence of alcohol at the time. ② The defendant used that the injured party has suffered mental and physical loss or resistance under the influence of alcohol.

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