(영문) 서울고등법원 2020.08.25 2020노423 | 리걸엔진

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(영문) 서울고등법원 2020.08.25 2020노423

강간미수

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

Sexual assault, 40 hours against the defendant.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) As the Defendant was in a state of mental disability because he was under the influence of alcohol at the time of claiming a misunderstanding of facts or a misunderstanding of legal principles and was in a state of mental disability so that he was unable to memory at all at the time of his assertion, it is difficult to deem that the Defendant’s assault or intimidation against the victim has reached the extent that the victim would not resist or make it significantly difficult to resist. Even if such assault or intimidation was committed, the Defendant was not in assault or threat as a means of rape, and there was no intention to rape. The lower court erred by misapprehending the legal principles and misapprehending the legal principles. 2) In so doing, the lower court’s punishment (one and half years of imprisonment, three years of suspended execution, etc.)

B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

2. Determination

A. As to the Defendant’s non-applicable of mitigation of mental illness, misunderstanding of facts, and misapprehension of legal principles, the lower court also asserted the same purport, and the lower court rejected the Defendant’s assertion on the grounds that: (a) the Defendant, with intent to rape, committed assault and threat to the extent to suppress the victim’s resistance; and (b) the Defendant did not seem to have a weak state of ability to discern things or make decisions at the time of committing the instant crime. Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence, the lower court’s determination is justifiable; and (b) there were no errors in the application of mitigation of mental or physical disabilities, mistake of facts, and misapprehension of legal principles alleged by the Defendant

(2) This part of the Defendant’s assertion is without merit. Inasmuch as the court’s additional decision confirms that the Defendant is walking normally according to the video CD, it cannot be deemed that the Defendant was drunk, and the Defendant was under the influence of alcohol.

유사 판례

-서울고등법원 2014.02.07 2013노3609

-광주고등법원 (제주) 2019.02.20 2018노90

-대구고등법원 2013.05.15 2012노380

-부산고등법원 2019.02.12 2018노601

-서울고등법원 2015.11.26 2015노1988