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(영문) 서울고등법원 2018.04.19 2017노2635
아동ㆍ청소년의성보호에관한법률위반(위계등추행)등
Text

The judgment of the court below is reversed.

Defendant shall be punished by imprisonment for not less than two years and six months.

However, the period of three years from the date this judgment became final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. In light of the legal principles, the Defendant did not have received a math or mouth sexual intercourse from the injured party on June 6, 2016.

On June 6, 2016, the Defendant received bucks from the injured party on the date and time stated in each charge except for those on June 6, 2016, such as shoulders, bucks, or sucks, but there is no fact that the Defendant, by assaulting or threatening the injured party so that the injured party may interfere with his sexual intercourse, or by force, caused the injured party to teach the sexual intercourse.

Contrary to this, each statement of the victim and I is inconsistent and inconsistent with the other's statements and the situation at the time.

Nevertheless, the court below found all the charges of this case guilty, and the court below erred by misunderstanding the facts and by misunderstanding the legal principles, which affected the conclusion of the judgment.

B. The sentence of the lower court’s unfair sentencing (the imprisonment of two years and six months, and the completion of 40 hours in sexual assault treatment programs) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding the relevant legal principles, when determining the credibility of the statement made by the victim, etc. supporting the facts charged, the court shall not reject the statement without permission, unless there are any other reliable data that can objectively be objectively seen and objectively deemed to lack credibility (see, e.g., Supreme Court Decision 201Do2631, Jun. 28, 2012). In addition, our court also held that, after taking an oath before a judge, the witness form, attitude, and appearance of the witness who is making the statement in the open court, and the statement in the witness examination protocol, such as the statement, are considered to have been obtained by directly observing various circumstances that are difficult to record, and the credibility of the statement made by the witness, including the victim, is assessed.

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