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(영문) 서울고등법원 2019.09.10 2019노1082
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자위계등간음)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for seven years.

For the accused, institutions related to children and juveniles.

Reasons

1. After the amendment of the facts charged in the appellate court’s summary of the grounds for appeal, the Defendant and the defense counsel do not specify the allegation that the facts charged were not specified.

Even if the argument that the date and time of the revised facts charged is not specified in the appellate trial continues to be maintained, the date and time of the revised facts charged should be considered to have been specified in light of the precedents, etc.

1) The grounds of appeal regarding the accused case reveal the following: (a) erroneous determination of facts (the accused) and the person who requested an attachment order, the person whose probation order is requested (hereinafter referred to as “defendants”) and the person who requested the attachment order, or the person who requested the probation order.

A) There is no act written in the facts charged, and the victim’s statement consistent with the facts charged is not reliable. Nevertheless, the lower court (the first instance court) which found the Defendant guilty on the grounds that the Defendant, based on the victim’s statement, had sexual intercourse by force with the victim under the age of 13, thereby affecting the conclusion of the judgment by misunderstanding the facts and finding the Defendant guilty in the whole charges, even if it is found that the Defendant’s charges were guilty, the sentence (one year of imprisonment, etc.) imposed by the lower court (seven years of imprisonment, etc.) is too unreasonable.

B. It is unreasonable for the court below to dismiss a request for attachment order filed by the person against whom the request for attachment order was filed, despite high possibility of recidivism of the same crime committed by the person for whom the request for attachment order was filed.

2. Determination of the grounds for appeal ex officio shall be made ex officio prior to the judgment.

With respect to the amendment of the indictment, the prosecutor applied for the amendment of the indictment to the effect that the date of the offense from “the beginning of January 2017” to “the period from January 3, 2017,” among the facts charged in the instant case, was changed to the subject of the adjudication.

Therefore, the entire judgment of the court below cannot be maintained as it is.

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