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(영문) 서울고등법원 2017.01.26 2016노2597
강제추행등
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. In the course of investigation, the Defendant stated to the police officer that there was an additional crime in the past, and the police investigated the Defendant’s statement and confirmed two additional crimes.

Therefore, with respect to the two additional crimes, the self-denunciation or self-regulation of the defendant, which is the reason for statutory mitigation of punishment, should be recognized.

The judgment of the court below is erroneous in the misunderstanding of legal principles that did not recognize the defendant's self-denunciation or clothes.

B. The sentence sentenced by the lower court to the Defendant (one year and six months of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of legal principles, “self-denunciation” as referred to in Article 52(1) of the Criminal Act refers to an expression of intent that an offender voluntarily reports his/her criminal act to the competent authority having the responsibility to investigate and seeks a disposition. As such, making a statement of facts constituting an offense in response to an official questioning or investigation by an investigative authority is only confession, not a confession, but a self-denunciation is formed when the offender expresses his/her intent to the investigative authority. As such, the internal intention alone is insufficient and it is recognizable

In addition, even if one defendant voluntarily surrenders himself/herself, it is merely the fact that the court can voluntarily reduce the punishment against him/her, and the court below did not render a reduction of the number of self-denunciation or did not render a decision on the allegation of mitigation of self-denunciation (see, e.g., Supreme Court Decision 2011Do12041, Dec. 22, 2011). In full view of the following facts acknowledged by the evidence duly adopted and investigated by the court below and the court below, the defendant stated a crime in response to inquiries or investigations conducted by an investigative agency.

Since it is reasonable to see this as only a confession, it cannot be viewed as a confession.

Even if the defendant's above statement is regarded as a self-denunciation, it is self-denunciation.

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