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(영문) 부산고등법원 2013.04.11 2013노101
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자위계등간음)등
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Under the influence of alcohol at the time of the instant crime, the Defendant was in a state of mental disability.

B. In light of the various sentencing conditions in the instant case of unfair sentencing, the sentence imposed by the lower court (seven years of imprisonment) is too unreasonable.

2. Determination:

A. According to the records on the determination of mental and physical disability, although the Defendant was in a state of drinking at the time of each of the instant crimes, considering various circumstances, such as the background, means, and the Defendant’s act before and after each of the instant crimes duly adopted and investigated by the court below, it is not deemed that the Defendant was under the influence of alcohol at the time of each of the instant crimes, and that the Defendant did not have the ability to discern things or make decisions.

Therefore, the defendant's argument of mental disability is without merit.

B. Examining the various sentencing conditions in the instant case regarding the assertion on unfair sentencing, there are favorable circumstances for the Defendant, such as the fact that the Defendant: (a) led to the confession of all the criminal facts of the instant case; and (b) was hospitalized or was hospitalized in a short term by alcohol use accompanied by alcohol use from December 30, 201 to February 29, 201; and (c) from September 28, 2012 to December 18, 2012, the date of detention, from September 28, 2012, from around December 18, 2012, the date of detention.

However, each of the crimes of this case is that the defendant has sexual intercourse or similar behavior by force with his spouse in a de facto marriage by force, and the frequency of such sexual intercourse is not many. Accordingly, the victim who is only 12 to 13 years seems to have suffered serious physical and mental pain to the extent that it can not be recovered through his life. The victim wants to severely punish the defendant, the defendant did not take any measures to recover the victim's damage, and the defendant did not take any measures to recover the victim's damage.

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