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(영문) 대구고등법원 2016.11.03 2016노348
성폭력범죄의처벌등에관한특례법위반(주거침입강간)등
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts1) The Defendant was using a method against the victim’s will while having sexual intercourse with the victim E, but did not commit assault and intimidation to the extent that it would make it impossible for the Defendant to resist. In particular, the Defendant and the victim had sexual intercourse with one another, and the content of telephone communications, etc. are confirmed through the following: (i) the Defendant violated the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (such as Residence Rape, etc.) were under the influence of alcohol and entered the victim I’s house at the time; (ii) the Defendant did not commit assault and intimidation to the extent that the victim could not resist; and (iii) did not commit assault and intimidation to the extent that it was impossible for the victim to resist.

B. Under the influence of alcohol at the time of committing a crime in violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the Defendant was in a state of weak ability to discern things or make decisions.

C. Even if the facts charged of unfair sentencing are found guilty, the lower court’s imprisonment (seven years of imprisonment) is too unreasonable.

2. Determination

A. Regarding the assertion of mistake of facts, 1) In full view of the following circumstances that can be acknowledged by the evidence duly adopted and investigated by the court below, the victim’s statement is highly reliable, and according to the victim’s statement, the fact that the Defendant was raped on two occasions, making it impossible or considerably difficult for the victim to resist, making it impossible for him/her to resist, or making it considerably difficult for him/her to resist.

Therefore, this part of the defendant's argument cannot be accepted.

(1) When the victim resists that the defendant does not refuse to do so by drinking his chest in an investigative agency, the victim was strokeing the victim's neck with his left arms at the same time, and is hiding.

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