(영문) 광주고등법원 2017.12.21 2017노299 | 리걸엔진

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(영문) 광주고등법원 2017.12.21 2017노299

성폭력범죄의처벌등에관한특례법위반(장애인강제추행)

Text

All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Judgment on the Defendant’s assertion of mistake of facts

A. Although the Defendant did not commit an indecent act against the victim as stated in the instant facts charged, the lower court found the Defendant guilty on the part of the victim’s statement with no credibility.

B. In a case where there are no new objective grounds that could affect the formation of documentary evidence in the appellate trial’s trial process, and there are no reasonable grounds to believe that the determination of documentary evidence of the first instance was clearly erroneous or that the argument leading to the acknowledgement of facts was significantly unfair due to the contrary to logical and empirical rules, the judgment on the acknowledgement of facts in the first instance shall not be reversed without permission (see Supreme Court Decision 2016Do18031, Mar. 22, 2017). The Defendant asserted to the same effect as the grounds for appeal in this part, and the lower court rejected this assertion in detail in the “determination on the assertion of the Defendant and his defense counsel” of the said judgment.

There is no reasonable ground to deem that it is remarkably unfair to maintain the judgment as it is in violation of logical and empirical rules that the judgment of evidence was clearly erroneous or that the argument leading to the acknowledgement of facts was against the logical and empirical rules.

In addition, the victim C appeared as a witness in this court and made a consistent statement on the defendant's indecent act.

The lower judgment did not err by misapprehending the legal principles as alleged in the Defendant, and thus, this part of the Defendant’s assertion is rejected.

2. The Defendant asserts that the sentence of the lower court is too excessive and unfair, and the prosecutor asserts that the sentence against the Defendant is too unfasible and unfair.

If there is no change in the sentencing conditions compared with the original judgment, and the sentencing of the original judgment does not deviate from the reasonable scope of discretion.

참조판례

-대법원 2017. 3. 22. 선고 2016도18031 판결

유사 판례

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