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(영문) 대법원 2021.03.11 2021도418
성폭력범죄의처벌및피해자보호등에관한법률위반(13세미만미성년자강간등)등
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. As to the grounds for appeal by the defendant

A. Examining various circumstances, such as the age and character environment of the Defendant and the person who requested an attachment order (hereinafter “Defendant”), the relationship with the victim, the motive and consequence of each of the instant crimes, and the circumstances after the commission of the crime, as indicated in the record regarding the Defendant’s case, the lower court’s sentence of imprisonment with prison labor for not more than 20 years is extremely unfair even if considering the circumstances asserted on the ground of appeal.

B. As to the case of the request for attachment order, inasmuch as the defendant filed a final appeal against the defendant's case, the case of the request for attachment order shall be deemed to have been appealed.

However, there is no indication of the reason in the petition of appeal, and there is no reason to object to this part in the petition of appeal.

2. As to the prosecutor's grounds for appeal

A. On the grounds indicated in its reasoning, the lower court reversed the first instance judgment convicting the Defendant on the ground that there was no proof of a crime regarding the part of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape by Relatives) in the attached Table No. 18 and 19 of the indictment No. 3 of the instant charges, and sentenced the Defendant not guilty.

The judgment below

Examining the reasoning in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the establishment of crimes of rape by blood in violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

The prosecutor asserts that the sentence of the court below sentenced to 20 years of imprisonment for the defendant is too unhued and unfair.

However, according to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for at least ten years is imposed, a final appeal may be filed on the grounds of unfair sentencing. However, under the interpretation of Article 383 subparagraph 4 of the Criminal Procedure Act, a prosecutor cannot file a final appeal on the grounds that his/her punishment is too minor (see Supreme Court Decision 2016Do1108, Apr. 15, 2016).

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