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(영문) 대구고등법원 2015.03.12 2014노523
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강간)등
Text

All appeals filed by the defendant and prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant and the respondent for an order to attach an electronic device (1) did not have raped the victim. Nevertheless, the lower court erred by misapprehending the legal doctrine on the probative value of a child’s statement, thereby adversely affecting the conclusion of the judgment. 2) The lower court’s sentence of unfair sentencing (10 years of imprisonment) is too unreasonable.

B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

2. Determination

A. 1) According to the following facts and circumstances acknowledged by the lower court and the evidence duly admitted and examined by the lower court, the victim’s statement is credibility. ① When the first statement or video recording was made on March 3, 2014, the victim was made on October 2013 by the victim’s hand, and on December 2013, the victim was able to contact the victim’s sexual organ. On February 2013, 2013 and around December 201, the victim was able to wear clothes, and the victim was sleeped on the victim’s sexual organ above, and the victim did not specifically inserted the Defendant’s sexual organ into the victim’s body part above. However, the victim made the victim’s statement to the effect that he/she was sleeped on the victim’s sexual organ at the time, and that he/she was sleepd on the victim’s sexual organ during the victim’s period from March 21, 2014 to May 21, 2015.

If such primary and secondary statements are limited to the contents disclosed in the outer world, there may be room to view that there is a circumstance to suspect the credibility of the victim’s statement due to lack of consistency in the mutual statements between them.

However, when the victim makes the first statement, the victim is asked at the victim's panty, etc. in relation to the situation after the completion of the defendant's act.

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