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(영문) 부산고등법원 2014.07.03 2014노109
성폭력범죄의처벌등에관한특례법위반(장애인강간)등
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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

The defendant is the subject of sexual assault treatment for 40 hours.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) Inasmuch as the Defendant committed an indecent act or sexual intercourse with the victim in the process, there is no fact of assault or intimidation in that process, and thus, the Defendant should be pronounced innocent. Even if the Defendant exercised a certain tangible power against the victim, this constitutes a deceptive scheme or force, and Article 6(5) and (6) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Article 6(2) of the Act on the Punishment, etc. of Sexual Crimes, is applicable. 2) The lower court’s punishment against the Defendant of unreasonable sentencing (three years and

B. The lower court’s sentence against the Defendant by the Prosecutor is too uneasible.

2. Judgment on the Defendant’s assertion of misunderstanding of facts or misapprehension of legal principles

A. On July 201 to August 8, 201, the summary of the facts charged is as follows: (a) the Defendant was living in an apartment complex, such as the victim C (the victim’s son, DNA, brain disease, and physical disability first-class) and the victim was disabled, with the knowledge that his/her ability to distinguish judgment, such as recognition and memory, was lost; and (b) on July 8, 201 through July 8, 201, the Defendant did not have the ability to distinguish the victim from his/her parents; and (c) the Defendant did not have his/her parent’s ability to pay attention to the victim; and (d) the Defendant did not have his/her parent’s ability to pay attention to the victim; and (d) the Defendant did not have his/her ability to pay attention to the victim. (e) The lower court determined that: (e) the Defendant did not have any physical disability, such as his/her ability to pay attention to the victim; and (e) the victim did not have his/her ability to pay attention to the victim.

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