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(영문) 서울고등법원 2020.12.11 2020노1656
아동ㆍ청소년의성보호에관한법률위반(강간등치상)
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for fifteen years.

The information on the accused shall be disclosed for a period of ten years.

Reasons

1. Summary of grounds for appeal;

A. The defendant and the person against whom the attachment order was requested (hereinafter referred to as the "defendant") had a mental disorder or mental and physical disability at the time of committing the instant crime, since their memory was remarkably deteriorated after having undergone cerebral surgery, the judgment below which did not reduce the degree of mental and physical disability is erroneous.

B. The sentence of an unreasonable sentencing (18 years of imprisonment) by the lower court is too unreasonable.

C. Although there are extenuating circumstances that may not disclose or notify the personal information of the accused in violation of an order to disclose or notify the personal information of the accused and an order to restrict employment, it is unreasonable for the lower court to order the accused to disclose or notify the personal information and to restrict employment.

The judgment of the court below that issued an attachment order is erroneous in the misconception of facts, although there is no risk of recidivism of sexual crime against the defendant regarding the attachment order.

2. Determination

A. The judgment of the court below on the assertion of mental and physical disorder is as stated in its reasoning: ① the Defendant was a female 13-year old female 13 who was not capable of being involved in the crime; the victim’s resistance was made false as if he had a knife to easily suppress the victim’s resistance; ② the crime was the same in the previous crime; ② the Defendant was leading female 13-year old to a place where there was no forced human being, and even around 2003 prior to the brain surgery, the Defendant committed the crime by means similar to the instant case, such as: ③ the Defendant’s act of this case is not memory because of a significant decline in memory; however, there is no circumstance to deem that the memory was deteriorated; rather, the Defendant requested to revise the protocol after undergoing an investigation by an investigative agency; and ④ the Medical Treatment and Custody at the Medical Treatment and Custody Office’s appraisal office clearly stated the form of objection, such as filing an objection against the victim’s age.

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