(영문) 대구고등법원 2014.07.03 2014노156 | 리걸엔진

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Reasons

텍스트 조절

글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 대구고등법원 2014.07.03 2014노156

강도강간등

Text

The judgment of the court below (including the portion not guilty) shall be reversed.

A defendant shall be punished by imprisonment for a term of six years and a fine of thirty million won.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) misunderstanding of facts (as to the injury caused by rape), the Defendant only committed a sexual intercourse with the victim with the consent of the victim, and did not commit rape. 2) Even if the Defendant was found guilty of the injury caused by rape in light of the circumstances leading up to the instant crime, the Defendant’s family relationship, etc., the lower court’s punishment (one year of imprisonment and 300,000 won of fine) is too unreasonable.

B. A prosecutor 1) In light of the fact-finding or misunderstanding of legal principles that the Defendant got off a mobile phone from the victim in the course of rape, the period during which the Defendant possessed a mobile phone from the victim, and there was no circumstance in which the Defendant attempted to return the mobile phone to the victim, etc., the Defendant ought to be deemed to have an intention of unlawful acquisition by excluding the ownership of the victim’s mobile phone and excluding the Defendant himself/herself for the purpose of using or disposing of the mobile phone in accordance with the method of use. Nevertheless, the lower court acquitted the Defendant of the charges of robbery on the ground that there was no evidence to support the fact that the Defendant was forcibly taking off the victim’s mobile phone with the intent of unlawful acquisition. Accordingly, the lower court erred by misapprehending the legal doctrine on the intent of unlawful acquisition in the crime of robbery, thereby adversely affecting the conclusion of the judgment. 2) The sentence of unfair sentencing is unreasonable

2. Determination

A. The evidence duly adopted and examined by the court below as to the defendant's assertion of mistake of facts, and, in particular, the statement that the defendant prevented the defendant from suffering a victim and taken the victim back to the place of scams (Evidence Record 183, 184) and the fact that the defendant forced the victim to do so even though the victim resisted that he did not want to do so.

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