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(영문) 서울고등법원 2019.01.17 2018노2182
아동ㆍ청소년의성보호에관한법률위반(준강간)등
Text

The judgment of the court below is reversed.

Defendant shall be punished by imprisonment for a term of one year and six months.

except that, for three years from the date this judgment becomes final and conclusive.

Reasons

1. The summary of the grounds for appeal (the imprisonment for a short term of one year and six months, the maximum of two years, the completion of sexual assault treatment programs for forty hours, and the restriction on employment for three years) of the lower court is too unreasonable and the amount of the punishment is determined unreasonable;

2. The offense of quasi-rape committed by the Defendant, taking advantage of the victim’s under the influence of alcohol, was committed by quasi-indecent acts by compulsion, or exceeded the victim’s load, etc., and attempted to insert the Defendant’s sexual organ into the part of the victim’s sound, is all serious crimes committed.

The victim who was a juvenile had a significant mental impulse due to each of the crimes committed by the defendant.

Therefore, since the possibility of criticism against the defendant is considerable, it should be subject to criminal liability corresponding thereto.

However, the defendant recognizes both crimes in the appellate court, reflects the fact that he/she has no record of criminal punishment, and expect sufficient improvement and edification as he/she has yet to be a juvenile.

In addition, the defendant seems to have committed each crime in a somewhat contingent judgment under the lack of the concept and judgment ability of sex.

In addition, the appellate court stated that the victim was guilty, and that the victim did not want the punishment of the defendant.

Considering the above various circumstances and the sentencing factors revealed in the appellate court trial, such as the character, conduct, environment, motive, means, and consequence of the crime, the sentence of imprisonment with prison labor sentenced by the court below is too unreasonable in the appellate court, and thus, the defendant's assertion is with merit.

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 judgment is rendered again as follows.

Pursuant to Article 369 of the Criminal Procedure Act, the corresponding column of the judgment of the court below shall be cited for this part of the judgment, and the summary of the evidence shall be “1. Defendant’s legal statement in the appellate court.”

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