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(영문) 서울고등법원 2019.03.21 2018노2734 (1)
성폭력범죄의처벌등에관한특례법위반(주거침입강간)등
Text

Defendant

In addition, all appeals filed by the person subject to attachment order, the person subject to probation order and the prosecutor are dismissed.

Reasons

Summary of Grounds for Appeal

The Defendant case and the person subject to attachment order, the person subject to probation order, the person subject to a request for probation order, and the Defendant and the person subject to attachment order and the person subject to a request for probation order (hereinafter referred to as “defendants”) move to officetels according to the victim’s proposal, and thus, they cannot be deemed to have intruded the structure against the victim’s will.

The intention of rape cannot be recognized on the ground that there are sufficient circumstances to believe that the victim was sexual intercourse or at least an agreement was reached under the agreement with the victim.

Nevertheless, the judgment of the court below which found the defendant guilty is erroneous in misconception of facts and misapprehension of legal principles.

The sentence of imprisonment with prison labor of the court below on the grounds of unfair sentencing is too unreasonable.

It is unreasonable to order the accused to disclose and notify the accused's personal information for five years, even though there are special circumstances that the disclosure and notification order should not disclose the accused's personal information, considering that there is no previous difference between the accused and the accused's improper disclosure and notification order, the risk of recidivism is high, and considering the disadvantage that the disclosure and notification order will affect the accused.

The sentence of the court below by the prosecutor is too uneased and unreasonable.

In light of the nature of the crime of this case, the criminal records of the defendant, the risk of recidivism, etc., the judgment of the court below which judged otherwise is unfair, even though it is necessary to attach an electronic tracking device to the defendant.

Judgment

As to the Defendant’s assertion of misunderstanding of facts and misapprehension of legal principles, the Defendant argued to the same effect as to this part of the judgment below, and the lower court rejected the above assertion on the grounds stated in the part on “judgment on the Defendant and the defense counsel’s assertion

The court below duly adopted and investigated the circumstances stated by the court below.

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