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(영문) 서울고등법원 2017.08.17 2017노681
성폭력범죄의처벌등에관한특례법위반(친족관계에의한강제추행)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

However, the above punishment shall be imposed for a period of five years from the date this judgment becomes final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. The Defendant alleged the misunderstanding of facts (the application for resumption of his/her oral argument on July 13, 2017) 1) as to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (a compulsory indecent act by blood relative), and the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (a indecent act by blood relative by blood relative), although the Defendant was unable to memory himself/herself, he/she did not make the victim-friendly couple to make it false

In the temporary place of the facts charged concerning forced indecent acts by blood relatives, there is no room for the victim and the defendant to be separated because the food equipment was in North Korea, such as preparing for a series of times by the defendant, so there is no room for the victim and the defendant.

In the temporary place indicated in the facts charged concerning the indecent act by quasi-performance, the victim stated to the effect that “the defendant was unable to become aware of his/her identity” was proven without any reasonable doubt that the defendant committed the above act.

shall not be deemed to exist.

Therefore, there is an error of law that affected the conclusion of the judgment by mistake of fact, which found the guilty of each of the facts charged in this part of the judgment below.

2) As to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (a quasi-fixive act), the Defendant did not put his/her fingers in the sound book, although the Defendant was written in the sound book of the victim.

Therefore, the judgment of the court below that found this part of the facts charged guilty is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

B. The lower court’s punishment (six years of imprisonment with prison labor) is too unreasonable, as it is too unreasonable to regard the unfair argument for sentencing (the grounds for appeal by March 27, 2017).

2. Determination

A. In full view of the language and content of Articles 361-2(1) and (2), 361-3(1), and 361-4(1) of the Criminal Procedure Act as to the legality of the assertion of mistake of facts among the grounds for appeal, the appellant or the defense counsel has received the notice of receipt of court records from the appellate court.

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