(영문) 서울고등법원 2018.02.22 2017노2955 | 리걸엔진

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(영문) 서울고등법원 2018.02.22 2017노2955

준강간등

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

Provided, That the above punishment shall be imposed for three years from the date this judgment becomes final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. Defendant (unfair sentencing) asserted misunderstanding of the facts and misapprehension of the legal principles as to rape on or before the second trial of the first instance trial, but on the third trial date of the first trial of the first instance trial, the Defendant made a confession and withdrawn the grounds for appeal on this part of the charges.

The punishment sentenced by the court below against the defendant (a two-year imprisonment, a forty-hour order to complete a sexual assault treatment program) is too unreasonable.

B. The issue of the instant case is whether the victim's statement was credibility, which is direct evidence, and the victim's statement is not consistent. The defendant's statement is merely a fact that there is no direct relation with the facts charged of similar rape, such as the fact that the defendant was faced with the victim, the circumstance that he was seated in a park, etc., and the contents of the statement do not seem to be sufficient to reject the credibility of the victim's statement as a whole. With respect to the fact that the victim puts his fingers into the victim's sexual intercourse, the investigation agency since it was consistent and specific to the court of the court below. The court below found the defendant guilty of quasi-rape in the DVD room. The lower court found the defendant guilty of the quasi-rape in the instant case. Even according to the defendant's statement, the victim's statement was about continuing to do so from DVD to KVD, and even according to the defendant's statement, it seems that the victim had considerable difficulty in resisting the victim's statement, and thus, found the victim's indirect mistake of rape.

2) The sentence sentenced by the lower court against the Defendant is too unhued and unreasonable.

2. Determination as to the prosecutor's assertion of mistake of facts

A. The summary of this part of the facts charged is as stated in the judgment below.

유사 판례

-부산고등법원 2018.04.24 2017노640

-서울고등법원 2016.03.25 2015노3406

-대전고등법원 2018.06.29 2018노169

-수원지방법원 2016.08.19 2015노7690

-부산고등법원 2018.12.19 2018노563