성폭력범죄의처벌등에관한특례법위반(친족관계에의한준강간)등
The defendant's appeal is dismissed.
1. Summary of grounds for appeal;
A. Although the Defendant, as stated in the facts charged in this case, did not have sexual intercourse with or indecent act against the victim who was in an impossible condition of resistance, the lower court found the Defendant guilty of all the facts charged in this case on the basis of each of the statements made by the victim and his mother C, which was difficult to ascertain. The lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.
B. The sentence of the lower court’s unfair sentencing (five years of imprisonment) is too unreasonable.
2. Determination
A. 1) On the assertion of mistake of facts, considering the difference between the first instance court and the appellate court’s method of evaluating credibility in accordance with the spirit of the principle of substantial direct deliberation adopted by the Criminal Procedure Act as an element of the trial-oriented principle, the first instance court’s judgment on the credibility of the statement made by the witness of the first instance court was clearly erroneous in light of the content of the first instance court’s judgment and the evidence duly examined by the first instance court.
Unless there exist extenuating circumstances to see, or in full view of the results of the first instance court’s examination and the results of the further examination of evidence conducted until the closing of pleadings, maintaining the first instance court’s determination as to the credibility of the statement made by the witness of the first instance court is significantly unfair, the appellate court should not reverse without permission the first instance court’s determination as to the credibility of the statement made by the witness of the first instance court (see, e.g., Supreme Court Decision 2011Do5313, Jun. 14, 2012). 2) We examine the instant case based on the aforementioned legal principles.
The Defendant also asserted that this part of the appeal was the same as the grounds for appeal, and the lower court rejected the Defendant’s assertion on the grounds of the detailed reasons as indicated in its reasoning in the item of “determination on the Defendant and his defense counsel’s assertion” of the judgment.
The court below recognized the evidence duly adopted and investigated by the court below.