2015do 19948 A. Rape

(b) Compulsory indecent acts;

(c) Quasi-voluntary indecent acts;

(d) Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kameras, etc.);

Use Recording)

(e) Quasi-Rape;

A

Defendant

Attorney AS

AT, a legal entity

Attorney in charge AU, AV

Seoul High Court Decision 2015 2171 decided December 4, 2015

February 18, 2016

The appeal shall be dismissed.

The grounds of appeal (the statement of the written appeal filed after the lapse of the period for submitting the written grounds of appeal is within the scope that supplements the grounds of appeal) shall be determined.

The recognition of the facts of crime should be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act), but the probative value of the selection of evidence and evidence made on the premise of fact-finding belongs to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act). The court below found all the facts of the crime as stated in the judgment of the court below on the basis of the evidence as stated in the judgment of the court of first instance, including the defendant's testimony at the court of first instance.

The argument in the grounds of appeal is the purport of disputing the determination of facts by the lower court. It is nothing more than an error of the lower court’s determination on the selection of evidence and probative value of the lower court, which belongs to the free judgment by the fact-finding court. Meanwhile, the argument in the grounds of appeal that the judgment by the lower court is unlawful on the grounds of the materials attached to the grounds of appeal is nothing more than an error of the lower court’s fact-finding while submitting new evidence materials which were not submitted by the lower court, the fact-finding court, to the final appeal, and making it late to the final appeal, which is a fact-finding court, and thus, it is not permissible in the final appeal of the lower court, which is a legal trial. Furthermore, considering the reasoning of the lower court’s judgment in light of the aforementioned legal principles and evidence duly adopted, the lower court did not err by misapprehending the legal principles on the credibility and degree of conviction, contrary to the logical and empirical rules, as otherwise alleged in the grounds of appeal.

In addition, examining the reasoning of the judgment of the court below in light of the reasoning of the original judgment that there is an illegality that infringes on the essential contents of the principle of balance of punishment and the principle of responsibility in the judgment of the court below, the allegation of the grounds for appeal in the above case constitutes an unfair argument for sentencing. However, according to Article 383 Subparag. 4 of the Criminal Procedure Act, an appeal against the case where death penalty, imprisonment with prison labor for life or for not less than ten years, or imprisonment without prison labor for not less than ten years is allowed. Thus, in the instant case where the defendant was sentenced to more minor punishment, as well as the instant case where the defendant was sentenced to imprisonment with prison labor, the allegation of the purport that the judgment of the sentence is unfair, including the above argument, cannot be a legitimate ground for appeal.

The other grounds of appeal by the defendant do not constitute legitimate grounds of appeal as stipulated in the subparagraphs of Article 383 of the Criminal Procedure Act.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Shin-chul

Justices Kim Yong-deok

Justices Park Poe-young

Justices Kwon Soon-il