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The judgment below
The part against Defendant A is reversed, and that part of the case is remanded to the Seoul High Court.
Reasons
1. The grounds of appeal are examined.
A. Examining the grounds for appeal by Defendant A in light of the reasoning of the lower judgment regarding the grounds for appeal that there was an error of infringing on the essential contents of the principle of balance of punishment and the principle of responsibility for the sentencing of the lower court, the allegation of the grounds for appeal above constitutes an unfair argument of sentencing.
Therefore, under Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, an appeal may be filed on the grounds of unfair sentencing. As such, in this case where the above defendant was sentenced to minor punishment, the argument that the determination of the sentence of the court below, including the above argument, is unfair is not a legitimate
B. The grounds for the appeal by Defendant B are proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and the probative value of evidence conducted on the premise of fact-finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act). For the reasons stated in its reasoning, the lower court determined that the above Defendant jointly with Defendant A constituted sexual intercourse by taking advantage of the victim’s mental and physical loss or resistance, and rejected the allegation of the grounds for appeal as to fact-finding, etc.
The allegation in the grounds of appeal is the purport of disputing the determination of facts by the lower court. It is nothing more than an error of the lower court’s determination on the selection of evidence and probative value, which belong to the free judgment by the fact-finding court. In addition, even when examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s determination is inconsistent with its reasoning without exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal.