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(영문) 대전고등법원 2018.04.20 2017노461
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자위계등추행)
Text

The judgment of the court below is reversed, and the defendant is punished by imprisonment for five years.

Sexual assault against the defendant for 120 hours.

Reasons

1. Summary of the grounds for appeal (misunderstanding of facts, misunderstanding of legal principles, unreasonable sentencing, and mental or physical weakness)

A. The facts constituting the crime under Articles 1 through 5 of the judgment of the court below as stated in the misunderstanding of facts and misapprehension of the legal principles do not specify the date and time of the crime.

It is difficult to view the criminal facts, and there is insufficient proof.

The defendant did not commit an indecent act or similarity with a victim as stated in the facts constituting an offense in the judgment below, and the facts constituting an indecent act under paragraph (2) of the judgment below do not constitute an indecent act, and the defendant does not use a deceptive scheme or force against the victim.

B. The Defendant was suffering from ADD along with the signs of sonia, and due to that, the Defendant was in a state of mental and physical weakness at the time of committing the instant crime.

(c)

The sentencing of the court below (the completion of the sexual assault treatment program for five years and 120 hours) is unfair because the sentencing of the court below is unfair.

2. Before determining on the grounds for ex officio appeal, the Prosecutor applied for the amendment of Bill of Indictment with the purport that “the date and time of the offense in paragraphs 1 through 5 of the facts charged from October 2016 to December 15, 2016” was “the date and time of the offense from October 1, 2016 to December 15, 2016, i.e., the period from November 2016 to December 201, i.e., the period from November 2016 to December 15, 2016,” and the subject of the judgment was changed by this court.

As above, the revised facts charged and the remainder of the judgment constitute concurrent crimes under the former part of Article 37 of the Criminal Act, and since a sentence should be imposed pursuant to Article 38(1) of the Criminal Act, the remainder cannot be maintained. Ultimately, the judgment of the court below cannot be exempted from the whole reversal.

3. In conclusion, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's grounds for appeal on the grounds of appeal on the grounds of the above ex officio reversal, and the judgment below is reversed, and it is again decided as follows.

[Grounds for the new judgment] criminal facts.

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