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All appeals filed by the defendant and prosecutor are dismissed.
Reasons
1. Summary of grounds for appeal;
A. The Defendant did not have taken two times the body of the victim using a mobile phone as stated in the instant facts charged.
Nevertheless, the lower court found the Defendant guilty on the ground of the consistent victim’s statement, etc., which affected the conclusion of the judgment by misunderstanding the facts.
B. The lower court’s sentence against the Defendant by the Prosecutor (a fine of KRW 5 million, and an order to complete a sexual assault treatment program 40 hours) is too unhued and unreasonable.
2. Determination
A. When comprehensively considering the results of the first instance court's examination and the results of the further examination of evidence conducted by the time of closing argument in the appellate court from the perspective of the trial-oriented principle as to the defendant's assertion of mistake of facts, the appellate court should not reverse without permission the first instance court's judgment as to the credibility of the statement made by the witness in the first instance unless there are exceptional cases where it is deemed that maintaining the first instance court's judgment is remarkably unfair (see, e.g., Supreme Court Decision 2009Do14409, Feb. 25, 2010). The defendant asserted the same purport as the grounds for appeal in the lower court, and the lower court rejected the defendant's assertion in detail at the bottom in the summary of evidence column. In light of the above legal principles, if we examine the judgment of the lower court lawfully and closely with the evidence duly adopted and examined by the lower court, the lower court's rejection of the defendant's defense in the instant case and the conviction of the defendant is justifiable, and there is no error in the misapprehension of facts.
B. Compared to the prosecutor’s argument of unfair sentencing, there is no change in the conditions of sentencing, and the sentencing of the first instance court is reasonable in its discretion.