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(영문) 서울고등법원 2017.11.10 2017노2435
성폭력범죄의처벌등에관한특례법위반(장애인준강간)등
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The judgment of the court below that found the defendant guilty of quasi-rape of the disabled among the facts charged in this case, although the defendant misunderstanding the fact that he prompted the victim C's chest and her fingers with the chest of the above victim, he did not have sexual intercourse, is erroneous in the misapprehension of the facts.

B. The sentence of the lower court’s unfair sentencing (four years of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion of mistake of facts, where the Defendant consistently led to a crime from the investigative agency to the trial date, and reversed his/her own confession from the trial date, in addition to examining the credibility of the confession statement, the following should be examined: (a) whether the statement to reverse the confession can be accepted in light of the motive, reason, and circumstances leading up to the reversal of the confession and the contents of the statement made after the investigative agency; and (b) whether there is any evidence supporting the reversal; (c) comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, the Defendant may sufficiently recognize the fact of sexual intercourse with the victim C, which is in an impossible condition due to a mental disability, such as the statement of facts in the judgment of the court below, and thus, the Defendant’s assertion of mistake is without merit.

The defendant may have ‘(victim C) sexual intercourse' in the initial police investigation, but he is well aware of his memory.

“In making a statement before making a statement, the investigator made a sexual intercourse (the above victim) with the question of the investigator.

The head of the Gu, who was listed on the victim's clothes, flaged up to the victim's clothes, flaged the chest, inserted the flag into the victim's clothes.

“In the prosecutor’s investigation, the reason why the police investigation first denied the sexual intercourse is that the victim C had sexual intercourse.

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