A. Defendant

1) misunderstanding of facts

On August 14, 2016, while the Defendant was drinking together with C, D, and the victim, on August 21, 2016: 00 to 22:00, the gap between C and D divided conversations in B and D with other victims on the second floor of the instant penta, and there was no quasi-rape of the victim as described in the facts charged.

2) Unreasonable sentencing

The sentence of the lower court against the Defendant (three years of imprisonment) is too unreasonable.

(b) Prosecutors;

The lower court’s sentence against the Defendant is too uneased and unreasonable.

2. Determination

A. As to the Defendant’s assertion of mistake of facts, according to the statement of a reply to the request for appraisal by the Director of the National Scientific Investigation Institute, the results of genetic appraisal of the clothes of the victim are as follows.

In full view of the following facts or circumstances acknowledged by the facts admitted by the lower court and duly admitted and investigated by the lower court, the Defendant’s assertion of misunderstanding of facts is without merit, since the Defendant has quasi-rapeed the victim as stated in the facts charged. Thus, the Defendant’s assertion of misunderstanding of facts is without merit.

Defendant, C, D, and the victim drink together with the instant pension and play alcohol in August 2016.

14. 23 : 00경 C과 피해자는 1층에서, 피고인과 D는 2층에서 각 잠을 자기로 했는데, C과 피해자는 얼마 후 잠이 들었고, D는 피고인과 성관계를 한 후 잠이 들었다. 그런데 피해자는 같은 날 24 : 00경 누군가 피해자의 음부에 성기를 삽입하는 느낌에 잠에서 깨어났고, 발버둥을 치고 소리를 지르며 자신의 위에 있는 사람을 밀쳐내고 불을 켠 후 자신의 옆에서 자고 있는 C을 깨워 추궁하였는데, C이 강력히 부인하자 그 다음날00 : 07 경 경찰에 신고하였다. 피해자는 곧바로 경찰서로 가서 C이 피해자를 강간한 것 같다는 진술을 하고 속옷 등에 대한 유전자검사를 받았다 .

The victim reported to the police after making efforts to find out the offender with strong rejection response immediately after the occurrence of the case. The statement from the investigative agency to the original court is consistent and specific, and there is no motive or reason to dismiss the defendant or C. Thus, the victim's statement is credibility.

Therefore, at around 24:00 on August 14, 2016, the victim was found to have been quasi-rapeed by arbitr. At that time, there was only the defendant c, but at that time, he was found to have been found to have been quasi-rapeed by arA. C’s credibility of the Defendant’s statement was found in the victim’s clothes and food, etc., and C’s nA was not detected. 3)

When C and D claimed that the Defendant had a sexual intercourse with the victim, the time between 15 minutes to 20 minutes, and the Defendant and the victim got to be Vietnam once in the middle of the conversation, and when considering that the instant penta was made in the form of the first floor in the studio and the second floor in the narrow room, it is not easy to readily understand that the Defendant and the victim had a sexual intercourse with C over the second floor in the instant penta for a short time, and it is difficult to understand that the Defendant and the victim had a sexual intercourse with the Defendant, so long as the victim had sexual intercourse with the Defendant, it is difficult to recognize that her sexual intercourse with the Defendant would go to the second floor in order to make a sexual intercourse with the Defendant.

According to the Defendant’s assertion, the victim, while drinking alcohol in the instant pen with the Defendant, C, and D, and playing in B and D, divided conversations from B and D with B and D, with the Defendant’s second floor of the instant penure, and again getting off to the Defendant, C, D and D with the Defendant’s second floor while playing in the instant penure and drinking again into the Defendant, C, D and D with the second floor, with the Defendant’s sexual intercourse with D as they were h and h with the Defendant’s second floor, and they were h were h and they were h were h, and they were h, and they were h and h were h. (at that time, C and D were h and D were h were h and they were friendly with their children and D, and after reporting the genetic test to the police, the victim and D did not receive the Defendant’s quasi-rape in light of the empirical rule from the Defendant without detection of C’s clothes in the victim, etc.

B. As to the assertion of unfair sentencing by the defendant and prosecutor

It is desirable to respect the sentencing of the first instance court in cases where there is no change in the conditions of sentencing compared to the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion. Although the sentence of the first instance falls within the reasonable scope of discretion, it is desirable to refrain from rendering a sentence that does not differ from the first instance court solely on the ground that the opinion of the appellate court is somewhat different from the opinion of the appellate court (Supreme Court en banc Decision 2015Do3260 Decided July 23, 2015).

In light of the above legal principles, there is no change in sentencing conditions compared with the first instance court, and the crime of this case is not likely to be committed by the defendant when he drinks with the victim's first time on the day of this case. The crime of this case was committed on the first floor of the victim's friendship D and the second floor of this case after having sexual intercourses with the victim's friendship D and the second floor of the pen of this case. Nevertheless, the defendant did not object to the crime while denying the crime and not endeavor to recover from the victim, and the defendant did not make any effort to recover from damage, and the defendant had the history of having been sentenced two times of punishment for sex crimes and attached to the location tracking electronic device at the time of this case, it cannot be deemed unfair since the court below's punishment against the defendant is too unreasonable. Thus, the defendant's allegation of unfair sentencing is without merit, and it cannot be viewed that the defendant's punishment against the defendant cannot be easily reversed when considering various sentencing conditions after the crime, such as the defendant's age, character, environment, motive, means and result after the crime.

3. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is dismissed as all are without merit.

Judges Park Sung-sung

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