B. - Children - Violation of the Act on the Protection of Juveniles against Sexual Abuse (Rape)

(c) Violation of the Punishment of Violences, etc. Act;

(d) Violence;

(e) Injury;

Law Firm AR

Attorney AS, AY, and AT

Although the establishment of facts must be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act), the selection of evidences and probative value of evidence conducted on the premise of fact-finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act). On the grounds stated in its reasoning, the lower court did not err in the misapprehension of the legal principles as to the judgment of the lower court, as otherwise alleged in the first instance judgment, by misapprehending the legal principles as to the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape) and the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (rape), as in the remainder of October 2012, the Defendant raped victims with deadly weapons and assaulted victims on March 31, 2013 as in the first instance judgment, and rejected the Defendant’s allegation in the grounds of appeal on mistake. The allegation in the grounds of appeal is merely an error of misapprehending the legal principles as to the judgment below’s selection and probative value of evidence.

2. The decision shall be made ex officio;

The lower court convicted the Defendant of the violation of the Punishment of Violences, etc. Act (gambling of group, deadly weapons, etc.) among the facts charged in the instant case by applying Articles 3(1) and 2(1)1 of the former Punishment of Violences, etc. Act (Amended by Act No. 12896, Dec. 30, 2014); and Article 283(1) of the Criminal Act.

However, on September 24, 2015, the Constitutional Court rendered a decision of unconstitutionality on the part concerning "a person who committed a crime under Article 283 (1) of the Criminal Act by carrying a deadly weapon or other dangerous articles with a deadly weapon or other dangerous articles" (see, e.g., Constitutional Court Order 2014HunBa154, Sept. 9, 2015) applied by the lower court on September 24, 2015 (see, e.g., Constitutional Court Order 2014HunBa154, Sept. 24, 2015). Accordingly, the said provision of the Act retroactively lost its effect pursuant to Article 47

w The Defendant’s case indicted by applying the pertinent provision of the law constitutes a crime not committed (see, e.g., Supreme Court Decisions 91Do2825, May 8, 1992; 2005Do8317, Jun. 28, 2007). As such, the lower court found the Defendant guilty of violation of the Punishment of Violences, etc. Act (collectively, deadly weapons, etc.) among the facts charged in the instant case, the lower judgment that found the Defendant guilty of each of the facts charged in the instant case was no longer maintained

On the other hand, the part of the judgment of the court below on the violation of the Punishment of Violences, etc. Act (Intimidation such as group, deadly weapon, etc.) with the above grounds for reversal was sentenced to a single punishment in the court below on the grounds that the remaining guilty part and the concurrent crimes under the former part of Article 37 of the Criminal Act are concurrent crimes.

3. Therefore, the guilty portion of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim In-bok, Counsel for the defendant

Justices Park Young-young

Justices Kim Jong-il