(영문) 서울고등법원 2013.11.21 2013노1828 | 리걸엔진

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(영문) 서울고등법원 2013.11.21 2013노1828

아동ㆍ청소년의성보호에관한법률위반(강제추행)등

Text

The judgment below

The guilty portion shall be reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

except that this judgment.

Reasons

1. The lower court dismissed the prosecution as to the assault against G among the facts charged in the instant case against the Defendant and the person against whom the attachment order was requested (hereinafter “Defendant”), and sentenced him to the remainder of the charges.

Since only the defendant appealed on the guilty portion on the ground of mistake of facts and unreasonable sentencing, the dismissal of public prosecution in the judgment below has become final and conclusive after the period of appeal expires.

Therefore, the scope of this court's trial is limited to the conviction part of the judgment below (including the case of attachment order claim).

2. Summary of grounds for appeal;

A. Although there was a fact that the victim's bridge was coercing, the court below found the victim guilty of the facts charged of this case in the absence of the victim's intentional buckbucks, paper sucks, etc., and there was no fact that the victim's body was taken by cell phone, and there was an error of law that affected the conclusion of the judgment by misunderstanding facts.

B. It is too excessive to order the Defendant to attach an electronic tracking device for three years in light of the content of the instant crime committed in violation of the attachment order of the electronic tracking device, the age of the Defendant, and the risk of recidivism.

C. The sentence imposed by the lower court on the Defendant (one year and six years of imprisonment) is too unreasonable.

3. Determination

A. The judgment of ex officio due to the amendment of the indictment on the part of the Defendant case applied for changes in indictment to delete the phrase “three times” from the charge of “violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes” among the facts charged in the instant case, and the judgment of the court below is no longer maintained as the case was changed by this court permitted it.

However, the defendant's assertion of mistake is still subject to the judgment of this court.

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