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(영문) 부산고등법원 2017.08.30 2017노60
준강간등
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The judgment of the court below which convicted all of the facts charged on the ground that there was an error of misunderstanding of facts or misunderstanding of legal principles.

1) Each statement made by the victim, J and K that correspond to the facts charged is not reliable.

2) The Defendant did not have any dancing with the victim as stated in paragraph (1) of the facts charged, and did not add the victim’s sexual organ into the part of the victim, such as paragraph (2) of the facts charged.

3) The victim did not have any means of resistance at the time of the Defendant’s act, such as the facts charged, and the Defendant did not have any awareness thereof.

B. In light of the fact that there was no record of criminal acts of the same kind in sentencing, and that there was a relatively sincere life as a public official, the lower court’s sentence (one year of imprisonment, 80 hours of order to complete the program) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of facts or misapprehension of the legal doctrine, the first instance judgment on the credibility of the statement made by the witness of the first instance court was clearly erroneous in light of the contents of the first instance judgment on the legal principle related to the victim, J, and K’s credibility or credibility of each statement made by the witness of the first instance court and the evidence duly examined in the first instance trial.

Unless there are extenuating circumstances to see the credibility of a statement made by a witness of the first instance trial and the result of an additional examination of evidence by the time the appellate trial is final and conclusive, the appellate court should not reverse without permission the first instance judgment on the ground that the first instance judgment on the credibility of a statement made by a witness of the first instance trial is different from the appellate court’s judgment (see Supreme Court Decision 201Do5313, Jun. 14, 2012, etc.). As the lower court properly stated, the victim is consistent with the facts charged, as it is consistent with the facts charged.

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