Defendant

Prosecutor

Lee Gyeong-soo

Attorney Lee Ji-hoon (National Election)

Busan District Court Decision 2008Gohap669 Decided February 18, 2009

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

The court below held that on August 31, 2008, when the defendant invadedd into the victim's house and stolen an amount of 100,000 won in cash from the victim's house at around 08:10 on August 31, 2008, and took a kitchen with a deadly weapon, and threatened the victim with a knife with a knife for the purpose of evading arrest of the shoulderer, while entering the kitchen, the court below held that the defendant committed rape by threatening the victim with a knife with a knife while the defendant invadedd the victim's room and stolen the cash, and then threatening the victim with a knife with a knife. The defendant's act of threatening the victim with a knife was occurred in a series of processes for rape of the victim, and it did not constitute an evasion of arrest of the preceding knife act or an act of destroying the crime, and therefore there is no proof as to special robbery.

However, deeming that the Defendant, when entering the first room, knife and knife the room for the purpose of threatening a person in the room, is in accord with the empirical rule, and the Defendant’s act of threatening the victim with a shoulderer knife while the Defendant is prone, is a means of evading arrest of the thief and also a means of threatening rape.

Therefore, although the charge of special robbery against the defendant is found guilty, the court below acquitted the defendant on the charge of special robbery. The judgment of the court below is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

B. Unreasonable sentencing

In light of the fact that the defendant intrudes into the victim's house to larceny and further commits rape against the victim, and that the crime is very poor, such as taking the victim a life-free bath, and that the special prevention cannot be achieved by the judgment of suspended execution, etc., the sentencing of the court below is too unreasonable.

2. Determination:

A. As to the assertion of mistake of fact

The court below acknowledged the facts and circumstances acknowledged by evidence under the title of "the part of innocence" and explained the judgment in detail, and judged that the above special robbery constitutes a case where there is no evidence of crime. The above judgment of the court below is just and it is not erroneous in the misapprehension of facts and there is no error of law affecting the conclusion of the judgment. Thus, the prosecutor's argument above is without merit.

B. As to the assertion of unfair sentencing

It is necessary to strictly punish the defendant in light of the fact that the defendant not only stolen property by entering the victim's house, but also commits rape by threatening the victim in knife, and that the method of the crime is not good.

However, in light of all the sentencing conditions indicated in the argument of this case, including the Defendant’s age, character and conduct, family environment, and circumstances after the crime, the sentence imposed by the court below is deemed appropriate and it is deemed unfair because it is too unreasonable, and it is not recognized that the above argument by the prosecutor is groundless, since the Defendant’s sentence imposed by the court below is deemed appropriate and it is not reasonable.

3. Conclusion

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

Judges Lee Jung-chul (Presiding Judge)