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The judgment below
The part of the defendant's case shall be reversed.
A defendant shall be punished by imprisonment for 18 years.
The defendant shall be 120 hours.
Reasons
1. Summary of grounds for appeal;
A. In the case of a mistake of facts or a misunderstanding of legal principles, the court below found the defendant and the person who requested to attach an attachment order (hereinafter only referred to as the "defendant") guilty of all the facts charged, although they did not carry a deadly weapon at the time of the above crime. The court below erred in the misapprehension of legal principles.
B. The sentence imposed by the court below on the defendant (18 years of imprisonment) is too unreasonable.
2. Part of the defendant's case
A. The gist of the criminal facts of paragraph (3) of the judgment of the court below in its ex officio determination is that "the defendant has quasi-rapeed the victim after he/she has larceny at night." This provision applies to "Article 5 (1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 10258, Apr. 15, 2010)." This provision provides that "any person who commits a crime under Article 319 (1), 330, 331 or 342 (limited to an attempted crime under Articles 30 and 331: Provided, That a person who commits a crime under Articles 30 and 331) of the Criminal Act shall be punished by imprisonment for life or for not less than five years."
According to the above provision, in a case where a person who commits night-entry larceny commits quasi-rape, only one crime is established against the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof. The crime of violating the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof is a combination of night-entry larceny under Article 330 of the Criminal Act and quasi-rape under Article 299 of the Criminal Act. Thus, it cannot be deemed that night-entry larceny is established separately from such crime.
(See Supreme Court Decision 2012Do914 Decided March 15, 2012). Nevertheless, the lower court erred by misapprehending the legal doctrine on the punishment of sexual crimes and protection of victims, as seen in the lower judgment.