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(영문) 광주고등법원 (전주) 2011.05.31 2011노37
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강간등)
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

However, for three years from the date this judgment becomes final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. As to the facts constituting the cause of the instant request for attachment order by the Defendant and the person subject to the request for attachment order (1) and each indecent act by force, the Defendant and the person subject to the request for attachment order (hereinafter “the Defendant”) did not exercise any form of force to make the victims unable to resist or suppress their will at the time of the instant case, and thus, the Defendant cannot be deemed to have committed indecent act by force.

(2) With respect to the facts constituting the cause of a request for the attachment order of this case, in light of the fact that the defendant did not have the same or a similar criminal record, the defendant committed each of the crimes of this case by contingently, and the defendant shows his sexual organ without actively exercising force against the victims, it cannot be deemed that the defendant has a criminal record of a sexual crime, and there is no risk of repeating the crime.

(3) The erroneous judgment of the court below, which sentenced the defendant to suspend the execution of a sentence, without ordering the defendant to be put on probation, violates Article 28(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders.

B. The sentence imposed by the court below on the defendant (two years of suspended execution in one year and six months of imprisonment, 40 hours of attending a sexual assault treatment lecture, 5 years of an order to disclose, and 6 years of an attachment order) is too uneasy and unreasonable.

2. Before determining the grounds for appeal by the defendant and the prosecutor ex officio, the prosecutor shall examine the facts charged and the facts constituting the cause of the attachment order as stated in the judgment below in the court below, and the facts constituting the cause of the attachment order as stated in paragraph 2, and the facts constituting the primary facts charged and the primary cause of the request for the attachment order, and commit an indecent act by force on this part.

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