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The part of the judgment of the court below in the first and second instances against Defendant A shall be reversed.
Defendant
A shall be punished by imprisonment for four years.
Defendant .
Reasons
1. The first court rendered a judgment of dismissal of the prosecutor’s request regarding the part of the defendant’s case and the part of the case for which the request for attachment order was filed, with respect to which only the defendant A appealed.
Therefore, the part of the request for attachment order is excluded from the scope of the trial of this court, notwithstanding the provisions of Article 9 (8) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders as there is no benefit of appeal.
2. Summary of grounds for appeal;
A. Defendant A1) In light of the fact that there was no discovery of the Defendant’s DNA in the victim’s sexual organ at the time of misunderstanding of facts, etc., Defendant A1’s behavior at the time of committing the crime of unfair sentencing (i.e., the victim’s body, the Defendant’s health condition, and especially the Defendant’s DNA in the victim’s sexual organ, etc., the Defendant only delivered the victim’s chest or agreed with the victim even if the fact of sex was true. Nevertheless, the lower court’s judgment that found the Defendant guilty of this part of the charges was erroneous in misunderstanding of facts.
B. The sentencing (long-term one year and short-term eight months) of the judgment of the court below of the second instance is too unreasonable.
3. The defendant filed an appeal against the judgment of the court below in entirety against the defendant A, and the court decided that the defendant's each appeal against the judgment of the court below will be consolidated and examined.
Each crime of the judgment of the court below against the defendant is one of the concurrent crimes under the former part of Article 37 of the Criminal Act, and a sentence shall be imposed within the scope of the term of punishment imposed pursuant to Article 38(1) of the Criminal Act. Therefore, the judgment of the court below cannot be maintained as it is.
However, the defendant A's assertion of mistake is still subject to the judgment of this court, despite the above reasons for reversal.