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서울고등법원 2019.09.18 2019노1011
성폭력범죄의처벌등에관한특례법위반(주거침입준강간)
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

However, for a period of four years from the date this judgment becomes final and conclusive.

Reasons

1. The summary of the grounds for appeal (e.g., imprisonment and six years) by the lower court (e.g., imprisonment and six years) is too unreasonable.

2. The Defendant, at the night in the preceding night place, had a telecom staff to open a visit with the victim as if the victim was the first frighter in order to enter the telecom where the victim was divingd, and infringed on the above room, and had sexual intercourse with the victim who was unable to resist.

The Criminal Code is bad, and the victim seems to have suffered considerable sexual humiliation and pain due to the crime of this case.

On the other hand, however, the defendant led to the confession of the crime of this case and his attitude to repent. On the other hand, the victim paid compensation to the victim and the victim did not want the punishment of the defendant.

The Defendant had no record of punishment in Korea prior to the instant case.

In full view of these circumstances and various sentencing conditions as shown in the instant records and arguments, the lower court’s sentence is deemed to be too unreasonable.

Therefore, the defendant's argument is justified.

3. Since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following judgment is rendered again after pleading.

[Discied Reasons for the Judgment] Criminal facts and summary of evidence recognized by the court is identical to each corresponding column of the judgment below, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article 3 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes under the relevant Act on Criminal Crimes, Articles 319 (1) and 299 of the Criminal Act;

1. Mitigation of discretionary mitigation under Articles 53 and 55 (1) 3 of the Criminal Act ( considered as favorable circumstances as stated in paragraph (2) of the same Article);

1. Article 62 (1) of the Criminal Act (wholly favorable circumstances as stated in the above paragraph (2));

1. Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from an order to attend a lecture;