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(영문) 대구고등법원 2015.11.26 2015노446
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강제추행)등
Text

1. The judgment below is reversed.

2. The defendant shall be punished by imprisonment for a period of two years and six months;

3. Provided, That for four years from the date this judgment becomes final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. The punishment (two years and six months of imprisonment) imposed by the lower court on the Defendant and the person to whom the attachment order was requested (hereinafter referred to as the “Defendant”) is deemed to be too unreasonable.

B. Prosecutor 1) In light of the fact that the Defendant committed a sexual crime against a victim under the age of 19 on several occasions in a short period of time, the part of the lower court’s application for an order to attach an electronic device is deemed to have an unreasonable sentencing sentence. Considering the circumstances leading up to the instant crime, etc., the lower court is sufficiently recognized that the Defendant is likely to recommit a sexual crime.

Therefore, the lower court’s dismissal of the Defendant’s request for the instant attachment order on the ground that there is no risk of recidivism.

2. We examine ex officio the grounds for appeal by the Defendant and the prosecutor prior to the judgment.

Article 7(3) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and Article 7(5) and (3) of the Criminal Act provide that a prosecutor shall change the name of the defendant to “Article 7(5) and (3) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes” (hereinafter “Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes”) and “Article 7(5) and (3) of the Criminal Act” in the applicable provisions of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. However, in light of the changed crimes and charges, Article 298 of the Criminal Act is clearly erroneous.

In addition, an application for changes in indictment to the facts charged and a written application for changes in indictment to which a request for an attachment order was made is only required to be amended as above. However, in the case of this case, an application for changes in indictment to which a “written indictment and a written request for an attachment order” was filed at the same time as the prosecution was filed.

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