2017No36 Violation of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof (Rape)

Murder)

2017No. 1 (Consolidated) An order to attach an electronic device

A

Both parties

Park Young-gu (Court) and Park Young-gu (Court of Justice)

Attorney CG (State Ship)

Gwangju District Court Decision 2016Kahap282, 2016Na33 (Consolidated) Decided January 11, 2017

August 31, 2017

All appeals filed by the defendant and the person subject to the attachment order and the prosecutor are dismissed.

1. Judgment on the misconception of facts and misapprehension of legal principles by the defendant and the person requesting an attachment order

A. The assertion

In light of the following circumstances, the judgment of the court below which found the defendant and the person to whom the attachment order was requested (hereinafter referred to as the "defendant") guilty of the facts charged of this case cannot be deemed to have murdered after rape of the victim as stated in the judgment of the court below.

① At the time of committing the instant crime, the Defendant had no reason to rape the victim as he/she had sexual intercourses with each other.

② Although the Defendant has sexual intercourse with the victim, it cannot be determined that the sexual intercourse and the time of the victim’s death is close.

③ It is difficult to believe that the police and the prosecutor’s report on the investigation of the victim’s criminal conduct prior to the occurrence of the instant case has taken about about 15 years from the date of the instant crime, and that the investigation was conducted.

④ The photograph taken by the defendant on the day of the crime of this case does not aim to manipulate the criminal records of the defendant.

B. Determination

1) There is no new objective reason that could affect the formation of a documentary evidence in the appellate trial’s trial process, and there is no reasonable ground to deem that the first instance court’s determination of evidence was clearly erroneous or that the argument leading to the fact-finding is significantly unreasonable due to the violation of logical and empirical rules, etc., the judgment on the fact-finding of the first instance court shall not be reversed without permission (see Supreme Court Decision 2016Do18031, Mar. 22, 2017).

2) In light of the records of the victim’s conduct immediately before death, the lower court determined that the Defendant could have recognized the fact of murder immediately after rapeing the victim, taking into account the following circumstances: (a) it is highly probable that the victim was forced to be off clothes by exercising his/her force; (b) the exercise of his/her force was committed in the course of rape, not by itself; (c) the Defendant’s sperm was detected from the nature of the victim; and (d) there is no possibility that the victim had sexual intercourse with the Defendant on the outside of the day of the instant case.

Examining the above judgment of the court below in comparison with the records, the judgment of the court below is justified even if all the evidence submitted by the defendant is considered, and there is no reasonable ground to deem that the judgment of the court below was clearly erroneous or that the argument leading to the fact-finding is significantly unfair due to the violation of logical and empirical rules. The court below did not err in the misapprehension of legal principles or by misapprehending legal principles as alleged by the defendant. This part of the defendant's assertion is rejected.

2. Judgment on the prosecutor's assertion of unfair sentencing

The prosecutor asserts that the sentence of the court below is too unhued and unreasonable.

In a case where there is no change in the sentencing conditions compared to the lower court, and the sentencing of the lower court is not beyond the reasonable scope of discretion, it is necessary to respect them (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

The crime of this case is an unfavorable circumstance to the defendant, such as the fact that the defendant, who is a female juvenile who is 17 years of age, was sexually moving into the new wall, raped, and murdered by strokes in the physical speed. Nevertheless, the defendant denies and does not seem to be contradictory to the end of his criminal act. Furthermore, the defendant, in order to destroy the evidence, was exempted from all the clothes of the victim to destroy the evidence, left the body in the physical speed, left away the body, taken a photograph of the female son who was under the teaching system at the time, and attempted to commit a criminal act, such as taking a photograph.

In light of the fact that the death penalty is a cooling punishment that deprives of human life and that it is extremely exceptional punishment that can be introduced by a judicial system, the sentence of death penalty should be permitted only when there are special circumstances where it is deemed justifiable in light of the degree of responsibility for the crime and the purpose of the punishment. Therefore, in determining whether to sentence the death penalty, the death penalty can be determined based on the matters stipulated in Article 51 of the Criminal Act, including the offender’s age, occupation and career, character and behavior, character, intelligence, education course, family relation, existence of criminal records, relationship with the victim, motive for the crime, degree of preparation, means and method, cruel and badness of the result, victim’s number and appraisal, victim’s attitude and attitude after the crime, victim and book, degree of damage recovery, concern of recidivism, etc. It can only be determined that the death penalty can be determined through a thorough examination and determination of the death penalty under Article 51 of the Criminal Act, and it can only be determined to the extent that a judge can readily pronounce the death penalty under the current law.

In full view of such circumstances as well as the Defendant’s age, character and conduct, environment, motive, means, and consequence of the instant crime, etc., the lower court cannot be deemed to have exceeded the reasonable bounds of discretion, and there is no change in sentencing conditions to deem that it is unfair to maintain that the lower court’s sentence for life exceeded the reasonable bounds of discretion, and there is no change in sentencing conditions to deem that it is unfair. Accordingly, the lower court’s sentence cannot be deemed unfair as it is too unreasonable, and thus, rejected the Prosecutor’s assertion of unfair

3. Conclusion

All appeals by the defendant and prosecutor are dismissed for lack of reason.

The presiding judge, judge and police superintendent;

Judges Lee Jong-tae

Judge Park Jong-hoon