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(영문) 서울고등법원 2017.01.20 2016노2627
성폭력범죄의처벌등에관한특례법위반(강간등상해)등
Text

All the judgment below is reversed.

A defendant shall be punished by imprisonment for six years.

Sexual assault against the defendant for 120 hours.

Reasons

1. Summary of grounds for appeal;

A. As to the Defendant’s part 1 of the instant case’s misunderstanding of facts and misapprehension of legal principles, the Defendant and the claimant for an order of observation on protection (hereinafter “Defendant”) have a knife with the victim.

There was no fact that the victim was detained due to intimidation, and there was no intention to detain the victim.

B) As to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.), the Defendant only committed a sexual intercourse under an agreement with the victim, did not commit rape by using excessive amount, and did not commit rape.

(2) The injury inflicted on the victim’s pelke section was caused when the defendant took the victim’s face in the vehicle, and the victim’s acute stress reaction is based on the content of the diagnosis issued solely on the victim’s statement. Thus, it cannot be deemed that the injury caused by rape is an injury.

2) The sentence of the lower court’s improper sentencing is too unreasonable.

3) There are special circumstances to exempt the Defendant from disclosure disclosure notification order.

B. The Defendant committed a sexual crime against the part of the case claiming an order to observe the protection.

Defendant has committed a sexual crime.

Even if there is no risk of recidivism, it is unreasonable that the court below ordered the defendant to observe the protection of the defendant.

2. Determination

A. (1) As to the Defendant’s assertion of misunderstanding the facts and misapprehension of the legal doctrine, the lower court: (a) based on the following circumstances that can be acknowledged by the evidence duly adopted and investigated; (b) based on the Defendant’s separate notice of the victim, the Defendant appears to have taken a part in the vehicle; and (c) the Defendant inflicted an injury on the victim to the extent that the victim’s face would lead to a considerable amount of escape; and (d) the Defendant, upon taking the victim’s face in the vehicle, inflicted an injury on the victim to the extent that the victim would have been faced with a considerable amount of escape; and (e) took the head of the victim and put the victim in arms.

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