(영문) 서울고등법원 2019.07.18 2018노3353 | 리걸엔진

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(영문) 서울고등법원 2019.07.18 2018노3353

강간등

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The judgment of the court below is reversed.

Defendant shall be punished by imprisonment for not less than two years and six months.

Sexual assault, 40 hours against the defendant.

Reasons

1. Summary of the grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles 1) The Defendant only made sexual contacts and made sexual intercourses under the agreement with the victim, and did not commit indecent acts and rape as stated in the facts charged by exercising force against the victim’s will. Although the victim’s statement consistent with the facts charged is inconsistent and contradictory, and does not coincide with objective circumstances, and thus lacks credibility, the court below erred by misapprehending the fact that the Defendant committed indecent acts and sexual intercourse with the victim by exercising force against the victim’s resistance by force, thereby inducing the victim’s resistance, and by inducing the victim’s resistance. 2) The court below erred by misapprehending the fact that the Defendant committed indecent acts and sexual intercourse with the victim.

Even if it is difficult to regard it as the exercise of force that makes it impossible or considerably difficult to resist the victim, the lower court convicted the victim of the instant charges by misapprehending the legal doctrine on indecent act by compulsion and the force required to establish the crime of rape.

B. The lower court’s sentence of unreasonable sentencing (three years of imprisonment, etc.) is too unreasonable.

2. Ex officio determination

A. In the first instance trial, the prosecutor of the Amendments to Bill of Indictment filed an application for modification of Bill of Indictment: (a) the date and time of the offense under paragraph (1) of the instant facts charged as “as of May 25, 2017” from “the first order of May 25, 2017”; and (b) the part of the instant facts charged as “the victim was in a state of drinking with snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snicks

B. Article 59-3(1) of the former Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018) on the Punishment, etc. of Sexual Crimes is a sexual crime under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

참조조문

-성폭력범죄의 처벌 등에 관한 특례법

-장애인복지법 제59조의3 제1항

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