(영문) 광주고등법원 2020.6.11. 선고 2019노465 판결

Although credibility of a victim’s statement concerning the circumstances during which rape was committed by the Defendant is recognized, such as that the victim’s statement is consistent and consistent with objective circumstances, the lower court acquitted the Defendant of this part of the facts charged on the ground that the victim’s statement was unjustly rejected, etc.

B. Unreasonable sentencing

The sentencing of the court below is too unjustifiable.

2. Determination

A. As to the assertion of mistake of fact

1) The judgment of the court below

The lower court determined that this part of the facts charged was not guilty on the grounds that the Defendant did not prove that he rape was committed on the following grounds. In light of the following: (a) the victim’s statement was made as direct evidence consistent with this part of the facts charged; (b) the victim’s statement was difficult to understand the circumstances leading up to the victim first filed a charge of attempted rape but was unable to understand the circumstances leading up to rape from the second investigation; and (c) the victim’s statement on the circumstances leading up to sexual intercourse in the location where the Defendant first attempted to sexual intercourse and in the Defendant’s residence was not consistent; (b) it is difficult to readily conclude that the Defendant and the victim had sexual intercourse within the Defendant’s residence on the day of the instant case; (c) even if such sexual relationship existed, the victim’s statement was reversed as to the circumstances leading up to the crime of rape, unlike other crimes of the Defendant; (d) the background leading up to the victim’s investigation and the crime of rape stated in the court of the lower court by the prosecution and the court below, in light of the circumstances leading to the instant case.

2) The judgment of this Court

In light of the fact that the criminal appellate court has the character as a post-trial but also has the spirit of substantial direct trial as prescribed in the Criminal Procedure Act, the first instance court, which directly observed the appearance and attitude of the witness who is taking part in the witness examination procedure with respect to the witness supporting the facts charged, judged that the credibility of the witness's statement cannot be acknowledged, should be deemed to be sufficient and acceptable if the appellate court reverses it and decides that the credibility of the witness's statement can be acknowledged, and if it intends to take it as evidence of conviction, it should be deemed that the first instance court's judgment rejecting the credibility of the statement appears (see, e.g., Supreme Court Decision 2006Do4994, Nov. 24, 2006).

In light of the evidence duly admitted and examined by the court below, the court below rejected the credibility of victim’s statement consistent with this part of the facts charged and found the Defendant not guilty of this part of the facts charged on the grounds as stated in its reasoning. Considering the circumstances asserted by the prosecutor as the grounds for appeal, it is difficult to deem that this part of the facts charged was proven without any reasonable doubt, and there was no new evidence or circumstance to reverse the judgment of the court below at this time. Therefore, the court below did not err by misunderstanding

B. Regarding the assertion of unfair sentencing

If there is no change in the sentencing conditions compared to the lower court, and the sentencing of the lower court is not beyond the reasonable scope of discretion, it is reasonable to respect it (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

The circumstances alleged by the Prosecutor as sentencing factors in this Court are already revealed in the proceedings of the lower court’s oral argument or appears to be sufficiently considered in determining the Defendant’s sentence, and no particular changes in the situation in the sentencing guidelines have been found after the lower court’s pronouncement. Considering the Defendant’s age, character, character, environment, family relationship, motive, means and consequence of the crime, and the scope of recommended sentencing based on the instant arguments and the records, including the Defendant’s age, character, character, environment, family relationship, motive, means and consequence of the crime, the circumstances after the crime was committed, and the scope of recommended sentencing based on the sentencing guidelines, the lower court’s sentencing is too unreasonable. The Prosecutor’s assertion on this part is without merit.

3. Conclusion

The prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act because it is groundless.