(영문) 서울고등법원 2019.1.25. 선고 2018노2763 판결

According to the victim’s statement, statement by the witness, Pialmera, telephone conversation content, CCTV image, etc., the victim was in a state of mental disorder or inability to resist as at the time of the instant case, and the Defendant was sufficiently aware that the victim was in such state.

Nevertheless, the judgment of the court below that acquitted the facts charged is erroneous in misconception of facts.

B. Unreasonable sentencing

Punishment (one million won of a fine) declared by the court below is too unhued and unfair.

2. Determination

A. Grounds for mistake of facts

The court below found the defendant not guilty of the charge of quasi-rape on the ground that it is difficult to believe that the victim's statement that he was in a state of mental or physical disability or failing to resist at the time of sexual intercourse based on the evidence duly admitted and investigated was inconsistent with the objective evidence or contrary to the empirical rule. M's statement, CCTV image, and gene appraisal alone are insufficient to recognize the victim's mental or physical disability or failing to resist, and there is no other evidence to deem that the victim was in a state of mental or physical disability or failing to resist, and even if the victim actually was in a state of mental or physical disability or failing to resist, it is difficult to deem that the victim was in a state of mental or physical disability or failing to resist.

Upon examining the above judgment of the court below in light of the records, the judgment of the court below is just and acceptable, and there is no error of mistake of facts as alleged by the prosecutor.

Therefore, the prosecutor's above assertion is without merit.

B. The assertion of unfair sentencing

The Criminal Procedure Act provides that "when there exists any reason to recognize that the amount of punishment is unreasonable," the grounds for appeal may be deemed to be the grounds for appeal (Article 361-5 subparagraph 15), and the rules on criminal procedure provide that the grounds for appeal shall be clearly stated in the statement of grounds for appeal (Article 155). According to the above provisions, a prosecutor appeals to the whole judgment of the first instance which rendered a conviction or partial conviction, or a partial acquittal, and only states that "the amount of punishment is unreasonable" in the petition of appeal or the statement of grounds for appeal, unless the specific grounds for appeal are stated, it shall not be deemed to be a legitimate grounds for appeal.

Meanwhile, in the event a prosecutor appeals, the grounds for unfair sentencing do not constitute the grounds for ex officio investigation or ex officio adjudication. Therefore, in such a case, the appellate court cannot determine whether the sentencing of the judgment of the court of first instance is unfair either ex officio or ex officio by the prosecutor’s appeal, and therefore, it is not allowed to reverse the conviction of the judgment of the court of first instance on the grounds that the sentence of the conviction of the judgment of the court of first instance is too minor (see, e.g., Supreme Court Decisions 2007Do8117, Jan. 31, 2008; 2016Do19824, Mar. 15, 2017).

According to the records of this case, the prosecutor appealed to the whole judgment of the first instance court which was partially acquitted, partially convicted (constition of duties, obstruction of property damage, and violation of the Punishment of Minor Offenses Act), and did not state in the petition of appeal the specific grounds for appeal that "the fact-finding or unreasonable sentencing" was stated as the grounds for appeal. The prosecutor stated in the petition of appeal that "the grounds for appeal" as the grounds for appeal submitted within the statutory period, but only stated only the specific reasons for the quasi-rape which was found innocent in the first instance court, and did not state any specific reasons for the part which was found guilty in the first instance court.

Examining the above facts in light of the legal principles as seen earlier, the prosecutor only stated the phrase “unfair punishment” in the petition of appeal or the statement of grounds of appeal while appealed against the guilty portion of the judgment of the court of first instance, and did not state any specific reasons. As such, it cannot be deemed that the prosecutor’s appeal against the guilty portion of the judgment of first instance as to the acquittal portion of the judgment of first instance is without merit. As seen earlier, inasmuch as the prosecutor’s appeal against the acquittal portion of the judgment of first instance is maintained as it is without merit, the appellate court cannot determine whether the sentencing of the guilty portion is unfair, and even if the sentence against the guilty portion of the judgment of the court of first instance is too

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.