beta
Text
The prosecutor's appeal is dismissed.
Reasons
1. Regarding the gist of the grounds for appeal, the defendant also recognized the fact that the defendant entered the defendant's residence through open questions without the victim's permission, and it is difficult to see that the defendant had the victim's constructive consent to the entry in light of the relation between the defendant and the victim at the time. Thus, the crime of intrusion upon residence is established.
In addition, even in the case of insult, the witness G of the court below stated that "the defendant has expressed a desire to the victim several times," and "this year and year," and that the facts charged have been sufficiently proven.
Nevertheless, the judgment of the court below which acquitted each of the facts charged of this case is erroneous by misapprehending the legal principles.
2. Determination
(a) In the case of entering the residence of another person against the intention of the resident, the crime of intrusion is established, and at this time the intention of the resident is included not only in explicit cases but also in implied cases, and may be presumed to be the opposing opinion of the resident depending on the surrounding circumstances.
(See Supreme Court Decision 92Do455 delivered on March 23, 1993, etc.). On the other hand, where a resident’s constructive consent is acknowledged, the crime of intrusion upon residence is not established. Even if the victim did not have a real consent, the presumption of consent in this context refers to the case where it is anticipated that the victim would have been naturally consented if the victim knew of the contents of the act, in light of all objective circumstances at the time of the act.
(See Supreme Court Decision 2005Do8081 Decided March 24, 2006, etc.). According to the health class in the instant case, according to the evidence duly admitted and examined by the court below, the victim has been given money from 2004 to the defendant several times, and the victim has continued to deliver a certificate of content to the victim around January 30, 2007.