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The judgment of the court below is reversed.
Defendant
A Imprisonment with labor for a maximum of two years, for a short of one year and six months, and for defendant B, for a period of one year and six months, respectively.
Reasons
1. Summary of grounds for appeal;
A. Defendant A had sexual intercourse with the victim as stated in the facts of the crime 1 and 2 as stated in the judgment below, and at the time, the victim was not in an impossible state of resistance.
B. Defendant B1) Defendant A’s sexual intercourse with the victim, as stated in the facts constituting the crime in the judgment below, was agreed upon, and at the time, the victim was not in an impossible state of resistance.
2) The sentence of the lower court (long-term two years and six months of imprisonment, short-term two years, and 80 hours of imprisonment) is too heavy.
2. In the trial of the court below, with regard to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (special quasi-rape) under paragraphs (1) and (2) of the same Article in the judgment of the court below, the prosecutor selectively added the charges in attached Form 1 to the charges, Article 7(5) and (1) of the Act on the Protection of Juveniles from Sexual Abuse, and Article 30 of the Criminal Act, and Article 7(1) of the applicable Act, and Article 30 of the Criminal Act, and Article 71(1)2 and Article 17 subparag. 2 of the applicable Act, Article 30 of the Act on the Protection of Children from Sexual Abuse was applied to the name of the crime, and Article 71 subparag. 2 of the Act on the Protection of Children from Sexual Abuse, Article 30 of the Criminal Act was amended by adding the charges to the charges.
As examined below, selective facts charged are recognized as follows. In the case of Defendant A, the selective facts charged and the part concerning violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (use photographing, such as a camera, etc.) for which an amendment to indictment was not made in the trial at the trial of the party. As such, the entire judgment of the court below is impossible to be maintained ( insofar as selective facts charged are acknowledged, the reasons for appeal by the Defendants against the existing facts charged are not determined separately). In the first instance trial, “Defendant A, as stated in the judgment of the court below, has sexual intercourse with the victim in a situation of resistance, such as paragraph (1)