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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal (unfair sentencing) of the lower court’s sentence against the Defendant (the suspension of sentence of KRW 3 million for a penalty, observation of protection, and treatment order) is unreasonable because it is too uneasible.
2. In a case where there is no change in the conditions of sentencing compared to the first instance court, and where the sentencing of the first instance does not deviate from the reasonable scope of discretion, it is reasonable to respect such a case (see Supreme Court Decision 2015Do3260, Jul. 23, 2015). As no new data on sentencing have been submitted in the first instance court, there is no change in the conditions of sentencing compared with the lower court’s judgment, and the circumstances for which the prosecutor alleged as grounds for sentencing are unfair are already reflected sufficiently in the sentencing grounds of the lower court. In full view of the various circumstances that form the conditions of the pleadings and the records of the instant case, including the relationship between the Defendant and the victim, the criminal history, age, environment, means and consequence, etc., of the Defendant and the victim, the lower court’s sentencing cannot be deemed unfair by exceeding the reasonable scope of discretion.
The prosecutor's assertion is without merit.
3. According to the conclusion, the prosecutor’s appeal is dismissed under Article 364(4) of the Criminal Procedure Act on the grounds that the appeal is without merit. It is so decided as per Disposition (Article 71(1)2 of the Child Uniforms and Child Uniforms Act, which is a law applicable to each crime in the judgment of the court below, was amended by Act No. 14925, Oct. 24, 2017; the above Act was enforced from April 25, 2018, which is the subsequent judgment of the court below.
Therefore, in accordance with Article 25(1) of the Regulation on Criminal Procedure, “the pertinent Article of the Act on Criminal Procedure 1.” in the application of the judgment of the court below ex officio pursuant to Article 25(1) of the former Child Uniforms Act (amended by Act No. 14925, Oct. 24, 2017) shall be corrected to “Article 71(1)2 and Article 17 subparag. 3 of the former Child Uniforms Act (amended by Act No. 14925, Oct. 24, 2017”).