강간미수
The judgment of the court below is reversed.
The defendant is innocent. The summary of this judgment shall be notified publicly.
1. Summary of grounds for appeal;
A. misunderstanding of facts and legal principles, while trying to dance with the victim while drinking alcohol with the victim, the victim was refused to do so, but there is no fact that the victim attempted to engage in sexual intercourse by assaulting or threatening the victim.
Nevertheless, the judgment of the court below convicted of the facts charged, which is erroneous in the misunderstanding of facts and in the misunderstanding of legal principles as to rape assault, thereby affecting the conclusion of the judgment.
B. The sentencing of the lower court’s unfair sentencing (one year of imprisonment and forty-hour order of sexual assault treatment programs) is too unreasonable.
2. Determination on the misapprehension of facts and misapprehension of legal principles
A. In a criminal trial, the conviction in the relevant legal principles ought to be based on evidence with probative value, which is sufficient to confluence that the facts charged are true beyond a reasonable doubt, and if there is no such proof, even if there is suspicion of guilt against the defendant, the conviction cannot be rendered (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2005Do8675, Mar. 9, 2006). In addition, in light of the spirit of substantial direct trial principle adopted by the Criminal Procedure Act, the appellate court should not reverse the first trial judgment on the credibility of the statement made by the witness of the first instance court, on the ground that the first trial judgment on the credibility of the statement made by the witness of the first instance court is different from the appellate court’s judgment, but the first trial judgment on the credibility of the statement made by the witness of the first instance court was clearly erroneous.
In light of special circumstances or the results of the first examination of evidence and the results of the additional examination of evidence conducted until the closing of the appellate trial, maintaining the first examination judgment on the credibility of the statement made by the witness of the first instance trial is not deemed significantly unfair (see Supreme Court Decisions 2006Do4994, Nov. 24, 2006; 2006Do4994, Nov. 24, 2006; 209.