미성년자의제강간등
The judgment below
The guilty portion shall be reversed.
The defendant shall be innocent.
1. Summary of grounds for appeal;
A. In fact, misunderstanding the legal doctrine and mistake, the Defendant was aware of C’s age as 14, and when indicating a statutory age in 12,00 (hereinafter referred to as “the statutory age”) was written in front of the age indication, and was unaware of the fact that the Defendant was not aware of the age starting from 1 that ordinarily used in the Republic of Korea, other than the statutory age.
Nevertheless, the lower court was aware of the Defendant’s age C was 12 years old.
In the judgment of this case, each minor's rape among the facts charged of this case, each minor's constructive quasi-Rape, and each minor's forced indecent act was convicted. This is erroneous in the misunderstanding of facts, and in the misunderstanding of legal principles as to the rules of evidence and incomplete awareness, which affected the conclusion of the judgment.
B. Sentencing of the lower judgment (a two-year imprisonment, a 80-hour order for sexual assault treatment programs, and an order for disclosure notice between five years) is too unreasonable.
2. The burden of proving the facts charged in a criminal trial as to the assertion of mistake of facts and misapprehension of legal principles is to be borne by the public prosecutor, and the conviction of guilt is to be based on evidence with probative value sufficient to cause a judge to feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it is inevitable to determine the defendant's interest even if there is any doubt as to the defendant's guilt (see Supreme Court Decision 2010Do9633, Nov. 11, 2010, etc.). The defendant, among the facts charged in the instant case, is rape of each minor, such as the fact that each minor is a similar rape, the fact that each minor is a similar rape, or that each minor is forced to commit an indecent act. Before doing so, it was recognized that C may fall under the age of 13 at the time of birth and thus, it was recognizable that it would fall under the age of 13.