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(영문) 대구고등법원 2016.07.07 2016노156
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자위계등추행)등
Text

1. The part of the judgment below on the defendant is reversed.

2. The defendant shall be punished by imprisonment for three years;

3. The defendant.

Reasons

1. Summary of grounds for appeal;

A. The sentence of the lower court (four years of imprisonment) by the Defendant and the person who requested the attachment order (hereinafter “Defendant”) is too unreasonable.

B. Prosecutor 1) It is unreasonable for the lower court to exempt the Defendant from the disclosure order and notification order of personal information.

2) The sentence of the lower court’s improper sentencing is too unhued and unreasonable.

3) It is unreasonable to dismiss the Defendant’s part of the case where the attachment order is requested, with high risk of repeating the crime, despite the necessity of the attachment order.

2. Determination

A. We examine ex officio the grounds for appeal by the Defendant and the prosecutor prior to the judgment.

In the first instance trial, the prosecutor changed the name of the crime against the part of Article 1-A of the facts charged into “indecent act by force of a minor,” and changed the applicable provisions to “Article 305 and Article 298 of the Criminal Act,” respectively, and “In so doing, the Defendant committed an indecent act against a minor under 13 years of age.”

In addition, with respect to the part of the facts charged No. 1-Ra or part of the facts charged, the applicable legal provision was amended to “a similar rape of a minor” as “Article 305 and Article 297-2 of the Criminal Act,” respectively, and the facts charged are similar rapes against a minor under the age of 13.

The judgment of the court below on this part cannot be maintained, inasmuch as there was an application for permission to amend the Bill of Indictment, which added "," and the subject of the judgment was changed by this court.

Meanwhile, the lower court, on the other hand, deemed that this part of the facts constituting the crime and the remaining facts constituting the crime are concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced to a single punishment. Accordingly, the lower court should reverse not only this part of the facts

B. Determination of the prosecutor’s assertion that exemption from disclosure and notification orders is unfair is provided as one of the grounds for exception to disclosure orders and notification orders under Articles 49(1) and 50(1) proviso of the Act on the Protection of Children and Juveniles against Sexual Abuse.

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