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(영문) 대구고등법원 2013.04.11 2012노564
성폭력범죄의처벌등에관한특례법위반(특수강간)
Text

All appeals by the Defendants and the Prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. (1) As stated in the judgment of the court below in misunderstanding of facts, there was a fact that the Defendants met the victim’s chest, fry, etc., and Defendant C attempted to inserting the sexual organ as soon as possible. However, this was the victim’s consent first, and there was no use of force, such as assaulting or detaining the victim at the time.

Nevertheless, the court below erred by misunderstanding the fact that it found guilty of the facts charged of this case and thereby affecting the conclusion of the judgment.

【The sentence of unreasonable sentencing (Defendant A, Defendant B: Imprisonment for two years and six months, Defendant C: imprisonment for three years, Defendants’ order to complete 80 hours each, and order to disclose and notify each five years) is too unreasonable.

B. The Prosecutor’s sentence is too uneased and unreasonable.

2. Judgment on the defendants' assertion of mistake of facts

A. The Defendants asserted in the lower court as alleged in the grounds for appeal of mistake of facts in the instant case, and the lower court acknowledged the circumstances as indicated in its reasoning based on the evidence duly adopted and examined, and rejected the Defendants’ assertion in determining that the Defendants could be convicted of committing rape as stated in the facts constituting a crime in the lower judgment, on the grounds that the Defendants sufficiently recognized the fact that they attempted to rape and attempted to commit rape as stated in the lower judgment.

B. Examining the following circumstances, which were duly admitted and investigated by the court below and the court below in light of the aforementioned circumstances admitted by the court below as a whole, the judgment of the court below is just and acceptable, and there is no error of misapprehending the facts as alleged in the grounds of appeal by the Defendants.

(1) The victim stated in the police that “the victim has suffered sexual assault from the Defendants” as stated in the judgment of the original court.

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