The prosecutor's appeal is dismissed.

Comprehensively taking account of the evidence consistent with the facts stated in the facts charged in this case, the relationship between the defendant's act and the victim's injury is sufficiently recognized.

The punishment of the court below (2 million won) which is unfair in sentencing is too unfluent and unfair.

Judgment

In a criminal trial on the determination of facts concerning the assertion of mistake, the recognition of facts should be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof fails to sufficiently reach the extent that it would lead to such conviction, even if the defendant’s assertion or defense is inconsistent or unreasonable, it should be determined in the interests of the defendant (see, e.g., Supreme Court Decision 2010Do1487, Apr. 28, 201). In addition, in light of the fact that the appellate court is in the nature as a post-trial even after its appearance, and the spirit of substantial direct trial as prescribed in the Criminal Procedure Act, etc., it is insufficient for the first instance court to exclude reasonable doubt after undergoing the examination of evidence, such as examination of witness.

In a case where a not-guilty verdict is rendered on the facts charged, if it does not reach the extent that it can sufficiently resolve the reasonable doubt raised by the first instance trial even if the probability or doubt about some opposing facts may be raised as a result of the appellate trial’s examination, there is an error of mistake in the determination of facts in the first instance judgment, which lacks proof of crime solely

Clearly concluding that the facts charged cannot be found guilty (see Supreme Court Decision 2015Do11428, Feb. 18, 2016). In full view of the circumstances as stated in its reasoning, the lower court’s determination of the instant case may reasonably doubt that the victim suffered injury as stated in the facts charged due to his or her act of massage of the Defendant.