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(영문) 대전고등법원 (청주) 2015.12.17 2015노99
성폭력범죄의처벌등에관한특례법위반(장애인강간)등
Text

All appeals filed by the defendant and prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) misunderstanding of facts only has a sexual intercourse three times under the agreement with the victim, and there was no rape, similar rape, or indecent act by force, as recorded in the facts charged. (2) In other words, “a person with a mental disability” in each of Article 6 subparag. 1, 2, and 3 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012; hereinafter “Sexual Crimes Punishment Act”) refers to “a person with a mental disability to the extent that he/she is unable to exercise his/her right to sexual self-determination.”

However, it is difficult to see that the victim had such mental disability at the time of each of the crimes in this case, and even if not, the defendant did not recognize that the victim had such mental disability at the time of the crime, so the crime falling under Article 6 (1), (2), and (3) of the Sexual Violence Punishment Act is not established.

3) The lower court’s sentence of unreasonable sentencing (two years of imprisonment, and forty hours of completion of sexual assault treatment programs) is too unreasonable. B. The prosecutor (an unjust judgment of the lower court) is too uneasible and unfair.

2. Determination:

A. Examining the evidence duly adopted and examined by the court below and the court below in light of the relevant legal principles as to the defendant's assertion of mistake of facts, the court below's decision that found all of the charges of this case guilty on the ground that the defendant's statement was credibility in the victim's statement corresponding to each of the charges of this case in light of the existence of the statement, the circumstance leading up to the statement of damage, the relationship between the defendant and the victim, and the victim's intellectual level. There

This part of the grounds for appeal is without merit.

B. As to the Defendant’s assertion of misapprehension of the legal doctrine, Article 6(1), (2), and (3) of the Sexual Violence Punishment Act are both physical or mental.

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