[미성년자의제강제추행][공2008하,1191]
[1] The method of determining the credibility of a statement made by a child victimized by sexual harassment
[2] The procedural requirements to enhance the credibility of the victim's statement in the criminal identification procedure by presentation of photographs
[1] In determining the credibility of a statement made by a sexual indecent act victim by evidence at the prosecution, considering the fact that the child's age is strong crypology by the questioner and that there is a possibility that confusion about the situation and reality of the child or the source of memory may not be properly perceived, the child's age should be examined, how much the child's age occurred, how much the child's statement was made after the occurrence of the case, how much the guardian or investigator who first heard the child's damage in the process from the time of the occurrence of the case until the statement was made, and whether there was any possibility that the child's sexual indecent act victim who was submitted as evidence would bring about a change in the child memory by providing information that is not a fact-finding or inducing a specific answer through repeated newspapers, etc., whether the question was repeated that may be committed by the questioner at the time of the statement, whether the child's statement was affected by the interviewer, what kind of statements about the harm is included in the standardized contents and contents of the case.
[2] In order to enhance the credibility of the victim's statement in the criminal identification process, a witness's statement or description as to the offender's appearance shall be recorded in detail in advance, and the suspect, including the suspect, shall be designated at the same time by facing the witness. The suspect, witness, and the comparative person shall not have any contact with each other; the process and result of the cross-examination shall be taken so that the value of evidence can be assessed later in writing with letters and pictures; the criminal identification procedure by presentation of photograph shall be basically followed.
[1] Article 308 of the Criminal Procedure Act, Articles 298 and 305 of the Criminal Act / [2] Articles 199 and 308 of the Criminal Procedure Act
[1] Supreme Court Decision 2005Da61027 decided Oct. 26, 2006 (Gong2006Ha, 1983) / [2] Supreme Court Decision 2003Do7033 decided Feb. 27, 2004 (Gong2004Sang, 579) Supreme Court Decision 2007Do5201 decided Jan. 17, 2008 (Gong2008Sang, 264)
Defendant
Prosecutor
Law Firm Shin, Attorney Yellow-chul et al.
Jeonju District Court Decision 2005No1621 Decided April 7, 2006
The appeal is dismissed.
The grounds of appeal are examined.
In determining the credibility of a statement made by a child victimized by sexual indecent act as evidence at the prosecutor's office, considering the fact that the child's age is strong in the case of the child, and that there is a possibility that the child's appearance and reality are confused or the source of memory can not be properly perceived, the child's age should be examined; how the above statement was made after the lapse of the time of the occurrence of the case; how the guardian or investigator who heard the damage to the child first in the process of the occurrence of the case until the above statement was made; whether there is any possibility that the child's memory may be modified by providing information that is not facts with a biased prejudice or inducing a specific answer through repeated newspapers, etc.; whether the above statement was repeated; whether the child's statement was affected by the questioner at the time of the above statement; whether the child's statement was made by the interviewer; and what statement was made in court; and whether there is a clear description and content of the case at least 20 60 persons should be reviewed in a comprehensive manner; and whether the above statement in the prosecutor's office's statements and contents of the case should be described.
In addition, in order to enhance the credibility of the victim's statement in the criminal identification procedure, the witness's statement or description about the suspect's appearance should be recorded in detail in advance, and the suspect, including the suspect, should be identified at the same time by facing the witness, and the suspect, witness, and the comparative partner should not have any contact with each other; the process and result of the cross-examination should be taken so that the value of evidence can be assessed ex post facto; and the criminal identification procedure by presentation of photograph must be basically followed (see Supreme Court Decision 2007Do5201, Jan. 17, 2008).
According to the reasoning of the judgment of the court below, the court below judged that the possibility of the victim's statement at the prosecutor's office, which is the direct evidence of the facts charged of this case, was received through repeated questions such as the non-indicted who asked the victim whether the defendant is the perpetrator or not, and thus, it cannot be ruled that the credibility of the statement is difficult to be doubtful. The judgment of the court below is acceptable in accordance with the above legal principles, and there is no violation of the rules of evidence as alleged in the grounds of appeal.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Hong-hoon (Presiding Justice)