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The judgment below
The conviction portion is reversed, and this part of the case is remanded to the Seoul High Court.
Reasons
1. The grounds of appeal are examined.
Criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and probative value of evidence conducted on the premise of fact finding belong to the free judgment of the fact-finding court.
(Article 308 of the Criminal Procedure Act). Based on its stated reasoning, the lower court rejected the Defendant’s allegation in the grounds of appeal as to mistake of facts, on the grounds that: (a) the Defendant, like the remainder of the facts excluding the facts of rape of the victims during October 2012 against C among the facts of the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape) and the Act on the Protection of Children and Juveniles against Sexual Abuse (rape) as indicated in the judgment of the first instance, and the remainder of the facts of assaulting on March 31, 2013, were all recognized, as stated in the judgment of the first instance.
The allegation in the grounds of appeal is merely an error in the judgment of the court below as to the choice of evidence and probative value, which belong to the free judgment of the court of fact-finding.
In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the degree of and criteria for determining the degree of insaneity of the crime of rape and quasi-rape, or by exceeding the bounds of the principle of free evaluation of
2. The decision shall be made ex officio;
The lower court convicted the Defendant by applying Articles 3(1) and 2(1)1 of the former Punishment of Violences, etc. Act (amended by Act No. 12896, Dec. 30, 2014) and Article 283(1) of the Criminal Act with regard to each of the instant facts charged.
However, the Constitutional Court rendered a ruling on September 24, 2015.