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(영문) 서울고등법원 2016.03.24 2015노2495
성폭력범죄의처벌등에관한특례법위반(친족관계에의한강제추행)등
Text

The defendant's appeal is dismissed.

Reasons

1. The court below found the defendant guilty of the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and the Act on the Protection of Children’s Juveniles from Sexual Abuse among the parts of the case, and dismissed the public prosecution against each assault, and sentenced the prosecutor’s request regarding the part concerning the attachment order case. The part concerning the defendant’s appeal against the conviction of the case was finalized, and the part concerning the case for which the defendant and the prosecutor did not appeal is excluded from the part concerning the attachment order claim despite Article 9(8) of the Act on Special Cases concerning the Protection and Observation of Specific Criminal Offenders and Electronic Monitoring, Etc., since the part concerning the attachment order claim is excluded from the part concerning the defendant’s appeal, the judgment of this court is limited to the part concerning the defendant’s violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (indecent Acts by blood) and the violation of the Act on the Protection of Children’s Juveniles from Sexual Abuse

2. Summary of grounds for appeal;

A. Although the defendant did not have committed an indecent act by force, such as misconception of facts, the court below convicted the victim of this part of the facts charged. The court below erred by misapprehending the rules of evidence, hearing failure, and misunderstanding of facts.

B. At the time of an indecent act by force against the victim, the Defendant was in a state of mental and physical loss or mental weakness under the influence of alcohol, by taking advantage of the negoal stability and exemption.

(c)

Sentencing improper sentencing of the court below is too unreasonable.

3. Determination

A. The following circumstances, which are acknowledged by comprehensively taking account of the evidence duly adopted and examined by the lower court and the lower court as to the assertion of factual mistake, etc.: ① the victim, who is a friendly father, committed an indecent act by force by the Defendant on the part of the victim’s chest and the fluor in a large room in his/her residence, from April 2014 to August 2014 every day.

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