(영문) 서울고등법원 2018.9.6. 선고 2018노938 판결

In light of the fact that the defendant is brought up at a home with normal disability and is extremely weak in thinking or decision-making ability, the defendant has lived in his absolute dependence on D, the defendant has damaged its value judgment ability due to D's abuse, and the defendant has to undergo continuous medical treatment such as large-scale imprisonment, six years of imprisonment, and four years of short term).

2. Determination

Based on the statutory penalty, the sentencing is a discretionary judgment that takes place within a reasonable and appropriate scope by comprehensively taking into account the factors that serve as the conditions for sentencing prescribed in Article 51 of the Criminal Act, and our Criminal Procedure Act, which takes the trial-oriented principle and the principle of direct supervision, has the inherent area of the first instance trial with respect to the determination of sentencing. In addition, in light of such circumstances and the nature of the appellate trial ex post facto and in addition, it is reasonable to respect the first instance judgment in cases where there is no change in the conditions for sentencing compared with the first instance judgment, and the sentencing of the first instance court does not deviate from the reasonable scope of the discretion. Even though the sentence of the first instance falls within the reasonable scope of the discretion, it is desirable to refrain from imposing a sentence that differs from the first instance judgment by destroying the first instance judgment on the grounds that it is somewhat different from the views of the appellate court (see Supreme Court en banc Decision 2015Do326

At the time of the instant crime, the Defendant was the age beyond the side of the criminal aesthetic year, the Defendant recognized the instant crime, against whom the Defendant was the first offender, the Defendant suffers from the disease that is the rare disease that is the rare disease that is difficult to completely recover, and the Defendant was in a depth more than a normal female relationship in the process of undergoing various operations for a large amount of time, and the Defendant was able to see the murder, etc. of D's mouth, and thus, it appears that it would not be easy for the Defendant to refuse the demands or instructions collected by D. Accordingly, it appears that it would not have been easy for him to refuse the demands or instructions collected by D.

① However, the crime of this case was committed by the Defendant under D’s instructions to attract the victim of sexual appearance to the house of the Defendant, and it is too good that the crime was committed with D with the dead body of the victim killed by D. ② The Defendant knew at the time of inducing the victim that the victim could act as a substitute for D’s wife, but the risk of causing sexual crime would have occurred. ③ The Defendant allowed the victim to drink drink with D’s instructions, and allowed the victim to sleep 2 eggs of exemption, as if it were impossible for the victim to sleep, and allowed the victim to sleep, with the victim to take away with D to leave the victim with D, and left the victim’s body to leave it to D, ④ The Defendant could have avoided the victim’s body and made it difficult for the victim to commit an indecent act by force. ④ The Defendant could have avoided the victim’s body and made it difficult for the victim to live together with D’s body and made it difficult for him to commit an indecent act by force.

In addition to the above factors of sentencing favorable or unfavorable to the defendant, taking into account the various factors of sentencing as shown in the records and arguments of this case, such as the character, conduct, environment, family relationship, health status, motive and background of the crime, means and consequence of the crime, etc., as well as the circumstances before and after the crime, and the fact that there is no special circumstance or change of circumstances to change the punishment of the court below in the trial, the punishment sentenced by the court below is acceptable within the proper scope of punishment according to the defendant's liability, and it is not recognized that it is too unreasonable.

Therefore, the defendant's assertion of unfair sentencing is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.