(영문) 수원고등법원 2020.01.08 2019노438 | 리걸엔진

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(영문) 수원고등법원 2020.01.08 2019노438

준유사강간

Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. When the defendant committed an act of misconception of facts or misapprehension of the legal principles, the victim did not have the state of mental disorder or impossibility of resisting due to the neglect, and the victim requested the act of similarity and the defendant only responded to it.

Nevertheless, the court below held that the defendant had raped the victim by taking advantage of the victim's mental disorder or non-fluoring condition, and there is an error of mistake or misapprehension of legal principles.

B. The lower court’s sentence of unreasonable sentencing (two years of imprisonment, etc.) is excessively unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. Around October 27, 2018, the summary of the facts charged was around 23:50 on October 27, 2018, the Defendant placed the Defendant’s sexual organ into the mouth of the victim C (the age of 21) who is a military ex post facto woman who is under the influence of alcohol in the Dongjak-gu Seoul Metropolitan Government Bel room, and was similar rape by inserting the Defendant’s finger will into the victim’s resistance.

B. In full view of the following circumstances acknowledged by the evidence adopted by the lower court, the lower court found the Defendant guilty of the instant facts charged on the ground that the Defendant could sufficiently recognize the fact that the Defendant had committed similar rape.

① The victim submitted a written complaint to an investigative agency three days after the occurrence of the instant crime, and from that time up to that of the lower court, consistently stated that the victim was damaged by quasi-Rape from the Defendant.

② Reviewing the following facts: (a) the on-site CCTV image; (b) the Defendant, at the time, made a statement to the effect that he/she was aware of the victim; and (c) the Defendant, at an investigative agency, made a statement to the effect that “the victim was in the influence of alcohol and almost he/she was able to lead to almost the victim’s personnel in the influence of alcohol;

(3) The defendant has led to confession in the second investigation by the prosecution, and at the time.

유사 판례

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