The appeal by the prosecutor and the defendant shall be dismissed.

1. Summary of grounds for appeal;

A. The prosecutor’s sentence of the lower court (five years of suspended execution for three years of imprisonment) is too unhued and unreasonable.

B. Defendant 1) misunderstanding of facts or misapprehension of legal principles, but the Defendant did not commit the attempted rape with the intent of rape as stated in each of the facts constituting the crime in the judgment below, and the Defendant never denied all the crime of indecent act by compulsion and attempted rape. However, on the second trial of the court of the trial, the part where the Defendant committed an indecent act against the victim’s will and recognized the part where the Defendant committed an indecent act against the victim, and entered the grounds for appeal as follows. 2) The judgment of the court below on unreasonable sentencing is too unreasonable.

2. Determination

A. 1) Determination of misconception of facts or misapprehension of legal principles: (a) In a case where a defendant denies an intentional act, which is a subjective element of the constituent elements of a crime, the criminal intent itself cannot be objectively proven; (b) thus, it is inevitable to prove it by means of proving indirect or circumstantial facts relevant to the criminal intent in light of the nature of an object. In such a case, what constitutes an indirect or circumstantial fact ought to be determined by a reasonable method of determining the link of facts based on the sound observation or analysis based on normal empirical rule (see, e.g., Supreme Court Decision 2016Do15470, Jan. 12, 2017). (b) The lower court explained the following circumstances, and determined that the Defendant attempted to rape the victim and was guilty of this part of the facts charged, comprehensively considering the following circumstances.

(1) The aggrieved person has consistently made statements that correspond to the facts charged from the investigative agency to the court, and specific matters, such as the background leading up to the office of the accused, the actions of the accused at the time of the act of the accused and response thereto, the response of the accused, the situation after the crime, etc.