(영문) 대구고등법원 2017.01.26 2015노646 | 리걸엔진

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(영문) 대구고등법원 2017.01.26 2015노646

강도강간등

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1. The judgment below is reversed.

2. The defendant shall be punished by imprisonment with prison labor for four years;

3. For a period of five years, information on the Defendant.

Reasons

1. Summary of grounds for appeal;

A. Although the Defendant and the respondent for an attachment order (hereinafter “Defendant”) indicated misunderstanding of the legal principles on the grounds of appeal, there is no assertion on the grounds of appeal.

1) The lower court found the Defendant guilty of rape based on the victim’s statement that is not reliable, even though the Defendant only committed the act of similarity with the victim in South Korea only under the so-called conditions, but did not assault or rape the victim, and even if the Defendant’s DNA was not found in the victim’s quality, the lower court convicted the Defendant of rape. In so doing, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2) Even if all of the charges of sentencing are found guilty, the sentence imposed by the lower court (five years of imprisonment) is too unreasonable.

3) The lower court’s order to attach an electronic tracking device to the Defendant for a period of ten years is harshly unfair.

B. A prosecutor 1) Fact-misunderstanding (the fact that robbery rapes) the Defendant deprived of his personal phone from the injured party.

However, it is difficult to believe this, and even if the defendant's assertion, he took the cellular phone to prevent the victim from reporting, such as the defendant's assertion.

Even though the defendant's intent to obtain unlawful acquisition can be recognized, the court below found that the intention to obtain unlawful acquisition cannot be recognized, and held that the judgment was not guilty of robbery rape based on the premise that the crime of robbery was established in the due diligence. The court below erred by misapprehending the facts.

2) The sentence of the lower court’s improper sentencing is too unhued and unreasonable.

2. Determination

A. 1) As to the part of the case of the defendant, the defendant argued that the facts of the defendant are identical to the assertion of mistake in the facts of this part in the court below, and the court below, as to this, may be recognized by the evidence duly adopted and investigated by the court below, i.e., the investigation agency and the court

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