A defendant shall be punished by imprisonment for six months.

Sexual assault against the defendant for forty hours.

A. Article 260(3) of the Criminal Act applies to habitual assault in the judgment of the first instance court. The victim expressed his intention not to punish the victim prior to the pronouncement of the judgment of the first instance court.

Nevertheless, the court below rendered a judgment of conviction without dismissing a public prosecution. Thus, the court below erred by misapprehending the legal principles, which affected the conclusion of the judgment.

B. At the time of committing the crime of the second instance judgment, the Defendant was in a state of mental and physical loss or mental weakness under the influence of alcohol.

(c)

Each court below's punishment (the first instance court's punishment: imprisonment for six months, and the second instance court's punishment: fine for three million won) is too unreasonable.

2. Determination

A. We examine ex officio prior to the judgment on the grounds for ex officio appeal.

This Court reviewed the appeal cases against the judgment below together, and since each of the offenses of the judgment below is concurrent crimes under the former part of Article 37 of the Criminal Act, one sentence should be imposed in accordance with Article 38(1) of the Criminal Act, the judgment of the court below cannot be maintained as it is.

Despite the above reasons for ex officio reversal, the defendant's misapprehension of the legal doctrine and his argument about mental and physical disorder still are subject to a trial.

B. As to the assertion of misunderstanding of legal principles, Article 260(3) of the Criminal Act cannot be prosecuted against the express intent of the victim in the case of assault under Article 260(1) and remaining assault under Article 260(2) of the Criminal Act.

Article 264 of the Criminal Code provides that "When a person habitually commits the crimes of Article 260, he/she shall be punished by aggravating up to one half of the penalty specified for the crime."

Article 260(3) of the Criminal Act does not apply to habitual assault crimes (see Supreme Court Decision 64Do687, Jan. 26, 1965). Therefore, the above assertion is without merit (the defendant has a record of being punished as violent crimes in several times, and is sentenced to punishment for the same kind of crime.