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(영문) 서울고등법원 2020.09.23 2020노441
강간치상등
Text

The judgment of the court below is reversed.

Defendant shall be punished by imprisonment for not less than three years and six months.

Sexual assault, 40 hours against the defendant.

Reasons

1. Summary of grounds for appeal;

A. In light of the fact-finding body and the misunderstanding of legal principles, the upper part of the crime of injury resulting from rape is not caused by the attempted rape of the defendant, but can be cured without any special treatment. Therefore, the crime of injury resulting from rape does not constitute injury.

In addition, the crime of confinement is not established separately on the ground that the defendant could not get the victim who intends to leave the telecom with the agreement.

Nevertheless, the judgment of the court below which found all of the charges of this case guilty is erroneous in misconception of facts and misapprehension of legal principles

In the statement of grounds for appeal, the defendant has denied the part concerning attempted rape, but after that, the part concerning attempted rape is recognized.

B. The sentence imposed by the lower court (five years of imprisonment, etc.) is too unreasonable.

2. Determination

A. 1) Determination of misunderstanding of facts and misapprehension of legal principles as to the establishment of the crime of injury resulting from rape is extremely minor and thus need to be treated as it does not constitute the injury of the crime of injury resulting from rape in the event that there is no obstacle in natural therapy and daily life. However, such argument is based on the premise that there is no assault or intimidation that may suppress the victim's resistance, or that it is the same degree of injury that may normally occur during daily life or that the act of sexual intercourse in accordance with an agreement is the same as the injury that may normally occur. Thus, if the victim's health condition is changed as bad and has a disability in his/her living function, it shall be determined on the basis of the victim's age, gender, physical and mental condition, such as physical and mental condition, rather than on the basis of objective and uniform determination of whether the victim's health condition is changed as bad and uniformly.

(See Supreme Court Decision 2005Do1039 delivered on May 26, 2005). Furthermore, the judgment of this court is given.

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