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(영문) 서울고등법원 2020.02.07 2019노1612
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자위계등간음)
Text

The judgment below

The part of the defendant's case shall be reversed.

A defendant shall be punished by imprisonment for five years.

80 hours per the defendant.

Reasons

1. As to the part of the Defendant case, the lower court rendered a judgment dismissing the prosecutor’s request regarding the part on which the request for attachment order was sought, and only the Defendant appealed.

Therefore, there is no benefit to the defendant with respect to the part of the case for which the attachment order is requested, so this court's trial scope is limited to the part of the defendant's case, notwithstanding Article 9 (8) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, and the part for which the attachment order is requested

2. Summary of grounds for appeal;

A. The Defendant, by mistake of facts or misunderstanding of legal principles, acknowledged the fact that he had sexual intercourse with the victim upon the request of the victim at around December 26, 2017, the date and time indicated in paragraphs 1 and 2 of the facts constituting the crime in the lower judgment, and on January 2018, but did not have sexual intercourse with the victim by force.

In addition, in the case of paragraph (2) of the crime in the judgment of the court below, even if the facts acknowledged by the defendant constitute the constructive rape of a minor under the Criminal Act, the defendant should be pronounced not guilty because there is no supporting

In addition, the defendant did not have a sexual relationship with the victim except for the sexual relationship two times above, and did not visit the family of the victim around the time specified in paragraph (3) of the criminal facts in the judgment below.

The statements made by the victim on the facts charged of this case are not consistent and unreasonable, and the victim showed symptoms such as repeating false statements due to mental illness at the time.

Nevertheless, since the court below recognized the credibility of the victim's statement and convicted all of the charges of this case, it erred by misunderstanding of facts or misunderstanding of legal principles.

B. The sentence imposed by the lower court on the Defendant (one hundred years of imprisonment, etc.) is too unreasonable.

C. The lower court erred by misapprehending the employment restriction order.

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