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(영문) 부산고등법원 (창원) 2015.10.28 2015노277
성폭력범죄의처벌등에관한특례법위반(장애인준강간)등
Text

Defendant

A All appeals against the Defendants by the Prosecutor and the Prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant A1) misunderstanding of facts and misunderstanding of legal principles did not have taken the F’s body body against F’s will. As such, the lower court convicted of this part of the facts charged, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, which affected the conclusion of the judgment. 2) The Defendant with mental disability was a state of mental disability due to intellectual disability (class 2) at the time of the instant crime, and thus

3) The sentence imposed by the court below (one year of imprisonment and two years of suspended execution, and 40 hours of order to attend a course) of unfair sentencing is too unreasonable. (b) In relation to the facts charged of mistake of facts, misunderstanding of legal principles (the defendant) and quasi-rape and quasi-rape, the victim's speech ability is not considerably deficient, but it is not clear that the victim has the ability to exercise his right to sexual self-determination because the victim's speech and expression of opinion is similar to normal, so it cannot be determined that the victim has the ability to exercise his right to sexual self-determination, even if the statement of the defendants is made by the defendants, it is deemed that the victim was aware of the fact that the victim had intellectual disability, and the behavior of sexual assault victim, who is a intellectual disabled, cannot be evaluated as the same way as normal behavior, the court below erred in the misapprehension of facts, which affected the conclusion of the judgment.

2) Unreasonable sentencing (the above sentence imposed by the lower court on Defendant A) is too unhued and unfair.

2. Determination

A. In full view of the evidence duly adopted and examined by the lower court and the following circumstances recognized by the rules of evidence, the legal principles, and the rules of evidence, the Defendant’s assertion of mistake of facts and misapprehension of the legal principles as to each of the Defendant’s assertion 1.

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