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(영문) 대전고등법원 2017.10.13 2017노247
성폭력범죄의처벌등에관한특례법위반(특수준강간)등
Text

All appeals by the Defendants and the Prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The Defendant, at the time of committing the instant crime, was in a state of mental or physical weakness or loss of mental or physical health that makes it difficult to make a normal judgment due to drinking.

B. The lower court’s sentencing (the Defendants, prosecutor, and prosecutor) against the Defendants (the maximum of 7 years of imprisonment and 5 years of short-term, Defendant A: the maximum of 4 years of imprisonment and 3 years of short-term, Defendant C, D, E, F, H, and I: each of the maximum of 3 years of imprisonment and 2 years and 6 months of short-term, Defendant G: the maximum of 3 years of imprisonment and 3 years of short-term, and 2 years and 3 months of short-term, Defendant G: the maximum of 3 years of imprisonment and 3 years of short-term, and 150,000 won of fine) are too unreasonable (the Defendants). On the contrary, each of the above sentencing is deemed unfair

A. According to the evidence duly admitted and examined by the court below and the court below as to Defendant D’s mental disorder, it cannot be deemed that the above facts alone did not have the ability to discern things or make decisions at the time of the instant crime, or did not have the ability to discern things at the time of the instant crime, in full view of the background leading up to the instant crime, the means and methods of the crime, the Defendant’s act before and after the instant crime, and the circumstances after the crime.

Therefore, the defendant's above assertion is rejected.

B. As to the Defendants and the Prosecutor’s argument of sentencing, the sentencing on the basis of statutory penalty is based on the discretionary judgment that takes place within a reasonable and appropriate scope, taking into account the factors constituting the conditions for sentencing under Article 51 of the Criminal Act.

However, considering the unique area of sentencing of sentencing of the first instance that is respected under the principle of trial priority and the principle of direct jurisdiction taken by our criminal litigation law and the nature of the ex post facto review of the appellate court, the sentencing of sentencing of the first instance was exceeded the reasonable scope of discretion when comprehensively taking into account the factors and guidelines for sentencing specified in the first instance sentencing trial process.

It is evaluated or new in the course of the appellate court's sentencing review.

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