폭력행위등처벌에관한법률위반(공동주거침입)등
The prosecutor's appeal is dismissed.
1. Summary of grounds for appeal (misunderstanding of facts and improper sentencing);
A. According to the evidence submitted by the prosecutor of the fact-finding, as the defendant A scambling the chairer and acted as the victim R and the victim S, thereby threatening the victims.
Nevertheless, the lower court rendered a judgment of not guilty of special intimidation among the facts charged against Defendant A. In so doing, the lower court erred by misapprehending the facts in the part of acquittal.
B. The punishment of each sentence sentenced by the lower court to the Defendants (a fine of KRW 7 million, Defendant B, and Defendant C: each of the fines of KRW 5 million) is too uneasible and unfair.
2. Determination
A. In a criminal trial on the assertion of mistake of facts (the point of special intimidation against Defendant A), the finding of guilt ought to be based on evidence with probative value sufficient for a judge to have a conviction of the facts charged to the extent that there is no reasonable doubt, and if there is no such proof, the conviction cannot be determined even if there is a suspicion of guilt against the Defendant even if there is no such proof.
In addition, in light of the fact that the criminal appellate court has the character as a post-examination even after the fact, and the spirit of substantial direct trial as provided in the Criminal Procedure Act, there is a lack of evidence to exclude a reasonable doubt after the first instance court has gone through the examination of evidence such as the examination of witness.
In a case where a not-guilty verdict is rendered on the facts charged, if it does not reach the extent that it can sufficiently resolve the reasonable doubt raised by the first instance trial even if the probability or doubt about some opposing facts may be raised as a result of the appellate trial’s examination, there is an error of mistake in the determination of facts in the first instance judgment, which lacks proof of crime solely
Specifying the facts charged, the lower court shall not be found guilty (see, e.g., Supreme Court Decision 2015Do8610, Apr. 15, 2016).