2019No2326 Colonel

A

Defendant

Kim Jong-tae (Court) (Court of Justice) (Court of Justice) (Court of Justice)

Attorney Shin Jae-soo (Korean Office)

Seoul Southern District Court Decision 2019Ma444 Decided October 23, 2019

January 31, 2020

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment with prison labor for up to six months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

The punishment of the court below (six months of imprisonment) is too unreasonable.

2. Ex officio determination

According to the records, the court below may recognize the facts that the defendant denied the crime of this case and led to the confession of the crime of this case. Therefore, the facts charged of this case should be subject to the necessary mitigation or exemption of punishment in accordance with Articles 157 and 153 of the Criminal Act. In this regard, the judgment of the court below cannot be maintained any more.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is reversed and it is again decided as follows.

【Grounds for the Judgment of the Supreme Court】

Criminal facts and summary of evidence

Criminal facts recognized by this court and summary of evidence shall be the gist of the evidence of the original judgment.

In addition to "1. The defendant's partial statement" being "1. The defendant's oral statement" as "the defendant's oral statement", it is identical to each corresponding column of the reasoning of the judgment of the court below. Thus, it is accepted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Article 156 of the Criminal Act, Selection of Imprisonment

1. Statutory mitigation;

Articles 157, 153, and 55(1)3 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

Reasons for sentencing

In particular, since the crime of rape is a crime of which the nature of the crime is significantly poor, the tangible and intangible damage suffered in the process is much larger than that of other crimes, even if the person under suspicion is confirmed, even if the person under suspicion is more serious than that of other crimes. In light of the fact that the Defendant made economic benefits, such as mutual agreement and opening of cell phones from the person under suspicion after filing a false report, the nature of the crime is not good.

However, the Defendant has been recognized as committing the instant crime at the time of the trial. The Defendant did not have any disadvantage to which a person was accused of the instant crime. The Defendant had no record of criminal punishment either punished for the same kind of crime or of a fine exceeding the fine. The Defendant was under mental medical treatment due to a mental disorder, such as an unidentified disorder, stimulative disorder, stimulative disorder, and inorganic mental disorder prior to the instant crime. In addition, the Defendant’s age, character and behavior, motive and background of the instant crime, means and consequence, and the conditions of punishment as set forth in the arguments and the records, such as the circumstances after the crime, etc.,

Judge of the presiding judge;

Judges Adjusted

Judges Lee Dong-won