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(영문) 서울고등법원 2017.08.18 2016노3082
아동ㆍ청소년의성보호에관한법률위반(강간등)
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

However, the above punishment for a period of two years from the date this judgment became final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. The lower court found the Defendant guilty of committing an indecent act against the victim on the grounds of the victim’s statement without credibility despite the Defendant’s indecent act by force. In so doing, the lower court erred by misapprehending the legal doctrine or misapprehending the legal doctrine.

B. The sentence sentenced by the prosecutor (two years of imprisonment with prison labor for a year) is too unfluent and unfair.

2. Determination:

A. Prior to the judgment on the grounds of ex officio appeal, the prosecutor examined the previous facts charged as the main facts charged, while maintaining the previous facts charged as the first instance court, and the first instance court applied for amendments to the indictment with the content of adding the facts charged as “Article 7(5) and (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse,” and Article 298 of the Criminal Act, “Article 7(5) and (3) of the applicable Act on the Protection of Children and Juveniles against Sexual Abuse,” and Article 298 of the Criminal Act, respectively, as stated in the facts charged. This Court permitted this to change this part of the judgment.

As examined below, the court below found the Defendant guilty of the primary facts charged, or erred by misapprehending the legal principles, which affected the conclusion of the judgment, and found the Defendant guilty of the primary facts charged, and thus, the court below cannot maintain the judgment below, since it found the Defendant guilty of the primary facts charged.

However, even if there are such reasons for ex officio reversal, the defendant's mistake of facts, violation of the rules of evidence, and misapprehension of the legal principles still are subject to the judgment of this court, and the defendant asserts the same purport as the preliminary charges.

B. Judgment on the primary facts charged 1) The primary defendant is a person who operates a H restaurant located in G in the Gu Council city, and the victim I (V, 17 years old) was an employee of the above restaurant.

A) On November 13, 2015, the crime was committed.

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