(영문) 광주고등법원 2015.03.05 2014노439 | 리걸엔진

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자간(%)

(영문) 광주고등법원 2015.03.05 2014노439

성폭력범죄의처벌등에관한특례법위반(장애인준강간등)

Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The Defendant, at the time of committing the instant crime, has weak the ability to discern things.

B. The victim of mistake or misunderstanding of legal principles was in a state of mental disability at the time of the occurrence, but was not in a state of difficulty or resistance.

C. The lower court’s sentence of unreasonable sentencing (three years and six months of imprisonment) is too unreasonable.

2. Determination

A. The Defendant asserts that the Defendant, at the time of committing the instant crime, has failed to have the ability to discern things by force.

However, in light of the fact that the crime of this case was committed by the defendant while driving a car, and sexual intercourse with the victim who was going on the way of " while driving a car" in the car (the defendant did not have been prosecuted for a drunk driving), the witnessO applied in order to prove the state of mental disorder on the part of the defendant stated that he did not drink with the defendant immediately before the crime of this case was committed, and that the defendant specifically stated the day between the victim and the victim at the court of the trial, it is difficult to accept the above argument.

B. The Defendant asserts that there was a mental disability at the time when the victim was unable to resist or resist, and that there was no difficulty in resisting.

Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11088, Nov. 17, 2011; hereinafter “former Sexual Exposure Act”) provides that “A person who has sexual intercourse with another woman or commits an indecent act against another person by taking advantage of the status of being unable to resist due to any physical or mental disability shall be punished in accordance with Article 297 or 298 of the Criminal Act.”

"A state in which a person is unable to resist due to any physical or mental disability" in the above provision shall be in a state of disability by itself.

참조조문

-성폭력범죄의 처벌 등에 관한 특례법 제6조

-형법 제297조

-형법 제298조

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