(영문) 부산고등법원 2016.10.06 2016노277 | 리걸엔진

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(영문) 부산고등법원 2016.10.06 2016노277

성폭력범죄의처벌등에관한특례법위반(강간등상해)등

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Defendant

All appeals by prosecutors are dismissed.

The request for adjudication on the constitutionality of the instant case is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) misunderstanding of facts or misunderstanding of legal principles (the part concerning the crime of rape, etc.) A) the Defendant tried to commit a rape on the part of the victim at the time and place recorded in the facts of the crime in the judgment of the court below, and at the same time and place, tried to commit a sexual intercourse on the part of the victim, but the victim resisted the defendant while resisting the victim, and was found to have the victim sound, and immediately diminished the victim, and there was no threat or threat on the part of the victim, the court below found the defendant guilty of this part of the charges on the grounds that the defendant attempted to rape against the victim by threatening the victim, which is a dangerous object, by threatening the victim, and in the process, the victim was guilty. The court below erred by misapprehending the facts or by misapprehending the legal principles on the crime of rape with a deadly weapon, which affected the conclusion of the judgment.

B) Since the Defendant voluntarily ceased rape as stated in the facts constituting an offense in the lower judgment, the lower court did not recognize it, which erred by misapprehending the legal doctrine on the attempted or attempted rape under Article 26 of the Criminal Act. 2) The sentence imposed by the lower court against the Defendant (including imprisonment for a period of six years, eight hours, completion of sexual assault treatment programs, confiscation, disclosure of information for five years, and notification) is too unreasonable.

B. The sentence imposed by the prosecutor by the court below against the defendant is too unfortunate and unfair.

2. Determination

A. As to the Defendant’s assertion of misunderstanding of facts or misapprehension of legal principles, the crime of rape under Article 297 of the Criminal Act is committed with a deadly weapon or other dangerous articles under Article 4(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

참조조문

-성폭력범죄의 처벌 등에 관한 특례법 제4조 제1항

-형법 제26조

-형법 제297조

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