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(영문) 서울고등법원 2014.04.04 2013노4046
성폭력범죄의처벌등에관한특례법위반(장애인준강간등)
Text

The judgment below

The part of the defendant's case against the defendants is reversed.

Defendants shall be sentenced to four years of imprisonment.

Reasons

1. Notwithstanding Article 9(8) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders as there is no benefit to appeal as to the part of the case for which the request for attachment order was filed, the lower court sentenced the Defendants to each of the guilty verdict regarding the case for which the request for attachment order was filed, and sentenced to each of the prosecutor’s requests regarding the case for which the request for attachment order was filed, and thus, excluded from the scope of the judgment of the court (see, e.g., Supreme Court Decisions 82Do2823, Jan. 18, 1983; 201Do611, Aug. 25, 201; 2011Do6705, 201Do20, Aug. 25, 2011). Therefore, the scope of the judgment of the court is limited to the part of the case for which the Defendants

2. Summary of the Defendants’ grounds for appeal

A. The victim of mistake of facts (Defendant B) was able to exercise his right to sexual self-determination, and there was a disability to the extent that he could not exercise his right to sexual self-determination.

Defendant B was unaware of such fact.

B. Since there are special circumstances that the Defendants are not obliged to disclose or notify due to the lack of risk of recidivism, the order to disclose or notify to the Defendants is unreasonable.

C. The sentence imposed by the lower court on the Defendants (four years of imprisonment) is too unreasonable.

3. Defendant B (hereinafter in this paragraph “Defendant”) also asserted the same purport as the above grounds for appeal in the court below’s determination on the erroneous determination of facts. The court below rejected the above assertion in the judgment “Judgment on the argument of the Defendant and the defense counsel” in detail. In comparison with the evidential materials, the judgment of the court below is justified.

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