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(영문) 서울고등법원 2017.10.19 2017노2349
강간미수등
Text

All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. 1) As to the attempted rape of the Defendant, the Defendant attempted to have a sexual intercourse under an agreement with the victim, and there is a suspicion in the victim’s womb.

In the future, only the sexual intercourse was interrupted by clarifying the intention of refusal, and there is no other way to commit rape against the victim.

However, there is an error of law that affected the conclusion of the judgment by misunderstanding the fact that the court below found the defendant guilty of attempted rape.

2) As to the conflict between the Defendant and the victim, the Defendant was merely able to pay the credit amount while engaging in simple credit transactions with the victim, and the Defendant did not obtain pecuniary benefits, such as singing, by threatening the victim.

However, there is an error of law that affected the conclusion of the judgment by misunderstanding the fact that the court below found each of the facts charged of conflict as guilty.

3) With respect to intimidation on April 6, 2017, the Defendant was unable to threaten the victim on April 6, 2017 because there was no gap between the victim’s singing room in the operation of the victim.

However, the lower court erred by misapprehending the fact that it was found guilty of the facts charged of intimidation on April 6, 2017, and thereby affecting the conclusion of the judgment.

B. “Carrying a dangerous object with a dangerous object” as an element for the crime of special intimidation, which is a prosecutor’s mistake of facts or by carrying a dangerous object argued by misunderstanding the legal principles, includes any act of notifying the victim of harm.

The Defendant was prepared to prepare for and possessed an illness in advance, and the investigative agency stated to the effect that “I would like to see the illness.”

Therefore, special intimidation is recognized among the facts charged.

Even so, the lower court erred by misapprehending the fact that it rendered a not guilty verdict on this part of the facts charged, or by misapprehending the legal doctrine, thereby affecting the conclusion of the judgment.

(c)

The judgment of the court below that each of the defendant and the prosecutor's grounds for the imposition of punishment is unfair (two years and six months of imprisonment and sexual violence).

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