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(영문) 서울고등법원 2013.07.18 2012노1812
아동ㆍ청소년의성보호에관한법률위반(강간등)등
Text

All judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for seven years.

For a period of 10 years, disclosed information on the accused.

Reasons

1. Summary of grounds for appeal;

A. Defendant and the respondent for an attachment order (1) The first judgment of the court below on the erroneous determination of facts (1) is the Defendant and the respondent for an attachment order (hereinafter “Defendant”).

(2) Although it was recognized that the Defendant had raped on two occasions with the victim N, a juvenile, but the Defendant did not exercise a little desire at the time of having a first sexual relationship with the victim, and did not have any other form of assault and any other means of force. The lower court erred by misapprehending the legal doctrine on assault and threat against the victim, thereby convicting the Defendant of all charges of this part of the charges, by misapprehending the legal doctrine on assault and threat against the crime of rape. (ii) The Defendant was suffering from alcohol dependence; (iii) even though he was under the influence of alcohol at the time of the crime of the lower judgment, even though he did not recognize mental disorder due to misunderstanding of facts or misunderstanding of legal principles, the lower court erred by failing to reduce or exempt the punishment accordingly.

3) The punishment (five years of imprisonment) and the punishment (four years of imprisonment) of the judgment of the court of first instance on the grounds of unfair sentencing is too unreasonable and unfair.B. Prosecutor 1) The judgment of the court of second instance which found the defendant guilty of rape against the victim, but the judgment of the court of second instance found the defendant guilty of rape on the ground that there was no proof of this part of the crime, and found the defendant not guilty on this part of the crime.

그러나 이 사건 범행 발생 직후 범행 장소인 G빌딩 지하 2층에서 피해자의 다른 물건들과 함께 담배꽁초가 발견되었고, 그 담배꽁초에서 피고인의 DNA가 검출되었던 점, 위 빌딩 지하는 상당히 으슥한 곳이어서 아무런 관련이 없는 사람이 우연히 들어가기 매우 어려운 곳인 점, 피해자는 이곳에서 심한 폭행을 당하여 의식을 잃었고, 정신을 차린 직후에도...

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