The defendant's appeal is dismissed.

With regard to the charge of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.), the fact that the defendant attempted to rape and the victim suffered injury is recognized.

However, the defendant did not enter the house against the victim's will, since the victim opened an entrance and enters the house in the country.

Therefore, since the defendant does not infringe upon a house, if a person who intrudes upon a house commits rape, the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes Aggravated Punishment should not be applied.

On February 8, 2020, there was no intention of intrusion on residence because it was found to enter the entrance of the house building and the public stairs of the victim who is a multi-family housing, or the defendant was found to be able to kill the victim, and there was no intention of intrusion on residence.

The punishment of the court below (six years of imprisonment, etc.) is too unreasonable.

Judgment

Considering the difference between the first instance court and the appellate court’s method of evaluation of credibility in accordance with the spirit of substantial direct deliberation adopted by the Criminal Procedure Act, in cases where the appellate court intends to conduct a re-evaluation of the first instance judgment and ex post facto determination in light of the fact that there is no new objective reason that may affect the formation of conviction during the trial process, it should be reasonably reasonable to deem that the first instance judgment was clearly erroneous, or that the argument leading to the acknowledgement of facts is considerably unfair due to the lack of logical and empirical rules, and that the first instance judgment was not followed without such exceptional circumstance (see, e.g., Supreme Court Decision 2016Do18031, Mar. 22, 2017).