Defendant

Defendant

Kim Jong-mun

Attorney Kim Jae-sung

Busan District Court Decision 2009Gohap76 Decided May 1, 2009

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

Access information on the accused shall be made available for inspection for five years.

1. Summary of grounds for appeal;

A. Grounds for mistake of facts

The Defendant did not forcibly commit an indecent act against the victim. Nevertheless, the lower court found the Defendant guilty of the facts charged of this case on the grounds of the victim’s statement without credibility. The lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.

B. The assertion of unfair sentencing

The sentencing of the court below (three years of imprisonment) is too unreasonable.

2. Determination:

A. Judgment on the assertion of mistake of facts

According to the evidence duly adopted and examined by the court below, in particular, the statements of Lee & Lee recorded in the statement recording video works and the records of the victim's appearance, etc., the defendant can sufficiently recognize the fact that the defendant committed an indecent act by force against the victim as stated in the facts constituting the crime in the judgment below, and even if examining the records, it cannot be found any error in the process of fact finding and judgment by the court below. Thus, the defendant's above assertion is without merit.

B. Determination on the assertion of unfair sentencing

The Defendant did not have any record of any other crime except a fine sentenced once due to drinking driving, and the crime of this case was committed by the Defendant in the state of being under the influence of alcohol, and the Defendant committed any contingent act in the state of being under the influence of alcohol, and the victim’s guardian wants to take the Defendant’s wife. In light of all kinds of sentencing conditions indicated in the instant case, such as age, character and conduct, intelligence and environment, health conditions, family relationship, motive, means, and consequence of the instant crime, etc., the sentence imposed by the lower court is too unreasonable. Thus, the Defendant’s above assertion is reasonable.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, since the defendant's appeal of this case is well-grounded, and the following judgment is rendered again.

The summary of the facts constituting an offense recognized by this court and the gist of the evidence is as shown in each corresponding column of the judgment below, except for the addition of “written evidence by this court” to the summary of the evidence as stated in the judgment below. Thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 8-2 (3) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, and Article 298 of the Criminal Act.

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Order of inspection;

Article 37 (1) 1 of the Act on the Protection of Juveniles against Sexual Abuse

Judges Lee Jung-young (Presiding Judge)