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(영문) 부산고등법원 (창원) 2017.02.15 2016노311
성폭력범죄의처벌등에관한특례법위반(강간등상해)
Text

The judgment of the court below is reversed.

Defendant

A and B shall be punished by imprisonment with prison labor for one year and six months, and by imprisonment with prison labor for six months.

(b).

Reasons

1. Summary of grounds for appeal;

A. Although Defendant A1 was aware of the fact that Defendant A had the victim’s chest during the very short time, Defendant A did not commit an indecent act with Defendant B and C, it was not the fact that the victim was injured by selling the victim’s face in the process of committing an indecent act from the victim to Defendant B and C, and there is no fact that Defendant A had the victim suffered injury in the course of committing an indecent act jointly with Defendant B and C.

2) Since Defendant A, a mentally and physically weak, was under the influence of alcohol at the time of committing the instant crime, punishment ought to be mitigated.

3) The sentence sentenced by the lower court to Defendant A (five years of imprisonment, 80 hours of order to complete the course) is too unreasonable.

B. Defendant B, C, and C alleged that only the initial unfair sentencing was the ground for appeal, and Defendant C alleged that “it was not a indecent act by force with Defendant A, and Defendant C did not have any other indecent act by force,” and that “it was only a fact that the victim tried to leave the inside and outside of Defendant B, but only the victim was fluent.” On the date of the 6th public trial of the first public trial, Defendant B alleged that it was erroneous to the effect that “The first and second indecent act was clearly divided due to changes in indictment, but the second indecent act cannot be recognized,” but the second indecent act cannot be deemed a legitimate ground for appeal since each of the above errors was raised after the expiration of the period for submitting the appeal due to the lapse of the period for filing the appeal.

However, we examine the following arguments of mistake of facts by Defendant B and C ex officio in the part of “3. Defendant A’s assertion of mistake of facts and ex officio determination of Defendant B and C.”

The punishment sentenced by the court below against Defendant B and C (one and half years of imprisonment, 40 hours of order to complete the program) is too unreasonable.

(c)

The sentence imposed by the court below against the Defendants is too excessive.

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