(영문) 서울고등법원 2019.08.13 2019노498 | 리걸엔진

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(영문) 서울고등법원 2019.08.13 2019노498

성폭력범죄의처벌등에관한특례법위반(특수강간)등

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The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Although there is no evidence to acknowledge the facts charged of this case, such as misconception of facts, in light of the following circumstances, the court below found the defendant guilty based on the victim's statement, etc. which is not reliable. The court below erred by misunderstanding of facts or misunderstanding of legal principles.

1) Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter “Special Rape”) in the judgment of the court below

In relation to the point of view, although there was a fact that the Defendant cited a knife while speaking for the victim who would come to know at the time and engaging in a dispute, there was no assault or intimidation against the victim, and there was no sexual intercourse under the agreement with the victim and with the victim (hereinafter “the first sexual relationship”).

2) With respect to the fact of rape as indicated in the judgment below, the Defendant only committed a sex relationship (hereinafter “the second sex relationship”) under an agreement with the victim, and did not commit any assault or intimidation against the victim.

Even if the Defendant committed assault and intimidation against the victim and had the first sexual intercourse with the victim, the second sexual relationship was later after a considerable period of time, and thus, the victim cannot be deemed to have been detained at the time.

3) With respect to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Act on the Punishment, etc. of Sexual Crimes, the Defendant notified the victim that he would photograph the same as a mobile phone while having the second sexual relationship with the victim, but the victim did not express any intent. Therefore, the Defendant recognized that he consented to the photographing of the victim.

Therefore, the defendant cannot be viewed as photographing the sexual intercourse against the victim's will.

B. The lower court’s sentencing is too unreasonable.

2. Determination

A. Judgment on the assertion of mistake of facts, etc. 1) The court shall render a judgment on the relevant legal principles.

유사 판례

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