On May 2016, the Defendant met the victim E (the age of 26) (the age of 26) who was demanding the Defendant to pay damages caused by fraud from his/her his/her his/her his/her his/her father’s wife D, in front of the Defendant’s cycle of Busan Southern-gu B apartment C.

(a) Violence;

The Defendant assaulted the victim on the ground that the victim's scam with the victim's hand floor once, and knife the victim's KON as his/her hand, on the ground that the victim's scam in the residence room of the defendant at the time and in the course of a dispute with the victim.

(b) Indecent acts;

While the Defendant was in a dispute with the victim at the date, time, place, and with the victim as described in paragraph (1), the Defendant took custody of the victim's chest with the victim's own hand, put the victim's finger into the finger body, and committed an indecent act by force against the victim.

2. Determination

A. The burden of proving the facts charged in a criminal trial is to be borne by a public prosecutor, and the conviction of guilt is to be based on the evidence of probative value, which makes a judge not having any reasonable doubt as to whether the facts charged are true. Thus, if there is no such evidence, even if there is suspicion of guilt against the defendant, it is inevitable to determine the defendant as the benefit of the defendant (see, e.g., Supreme Court Decision 2010Do9633, Nov. 11, 2010).

B. Probative value of the statement prepared by judicial police officers against victims E

1) The victim E died on January 15, 2019, and it is a question whether the written statement prepared by a judicial police officer against the victim E who denies the authenticity of the petition can be admissible as evidence in accordance with Article 314 of the Criminal Procedure Act.

2) Article 314 of the Criminal Procedure Act provides that "When a person who needs to make a statement on a trial date is unable to make a statement because he/she has died, the protocol may be admitted as evidence, but it shall be limited to when it is proved that the statement or preparation was made under particularly reliable circumstances."

3) The term “when the statement or preparation was made under particularly reliable circumstances” refers to cases where there is little room for false entry in the preparation of the content of the statement or the protocol or documents, and there is a specific and external circumstance that ensures the credibility or arbitability of the content of the statement (see Supreme Court Decision 2004Do3987, Oct. 8, 2004).

4) Article 314 of the Criminal Procedure Act, which provides an exception to the hearsay rule, strictly limits the scope of admissibility of evidence to the minimum necessary extent. In a case where a prosecutor submits a statement made at a preparatory hearing or at a time other than the trial date as evidence of guilt, the court must first have the prosecutor prove the circumstances of "under particularly reliable circumstances," and can only be the object of examination of evidence when it is recognized as satisfying the requirements after strictly examining the statement. The required degree of proof is beyond the degree of simply securing legitimate and arbitability of the statement in light of the specific circumstances and circumstances of the statement, beyond the degree of securing the credibility of the statement even if it does not go through a cross-examination, etc. in the court, so it should reach the extent that it can be evaluated as an exception to the substantial direct cross-examination and hearsay rule (see Supreme Court Decision 201Do12, Oct. 11, 201).

5) Article 314 of the Criminal Procedure Act recognizes the admissibility of evidence of the statement or written statement prepared by the witness when the whereabouts of the witness is unknown. Article 312 or 313 of the Criminal Procedure Act recognizes the admissibility of evidence only when strict requirements such as guaranteeing the right of cross-examination of the defendant or his/her defense counsel with respect to the written statement, such as the statement of witness, etc., provided that the admissibility of evidence can be granted without any opportunity to cross-examine the person making the original statement, etc., by recognizing the exceptions again. In such a case, “proof of whether the statement or written statement of the witness was made in a particularly reliable state” is insufficient to the extent that it is probable, and there is room for reasonable deliberation (see Supreme Court Decision 2012Do725, Apr. 30, 2014).

6) According to the record, the Defendant denies the criminal facts from the investigative agency to the present court, and the victim filed the instant criminal complaint from the date and time stated in the facts charged to a relatively considerable time (20 months). The investigative agency did not proceed with a cross-examination to verify the credibility of the statement between the Defendant and the victim. In addition, even if the witness’s testimony is inconsistent and inconsistent, it does not seem that the credibility of the protocol of statement prepared by the judicial police officer against the victim is guaranteed to the extent that the admissibility of the evidence is acknowledged, without giving the witness an opportunity to cross-examine.

7) Ultimately, it is difficult to view that the prosecutor’s proof alone proves that the victim’s statement recorded in the statement prepared by the judicial police officer against the victim E was proven beyond reasonable doubt, and it is difficult to recognize the admissibility of the above protocol as evidence.

C. In full view of the following facts and circumstances revealed through evidence and records, it is difficult to view that the evidence submitted by the prosecutor alone used by the defendant to assault the victim as stated in the facts charged, and that it was proved without reasonable doubt that the defendant committed an indecent act by force against the victim.

1) There is a difference between the witness F and G’s statement about whether the defendant’s fatherd was the defendant’s father at the site of the case. If there is D, it is difficult to understand that the defendant committed an indecent act against the victim, who is the creditor of his father immediately before his father’s father, as stated in the facts charged (no special criminal record exists against the defendant) in light of the empirical rule. Furthermore, since the investigation and trial on DNA’s fraudulent crime were in progress at the time (the victim, F, and G appears to have been the creditor of the victim, F, and G as to D), it was difficult to perform such act even in order to avoid any unfavorable condition in the course of investigation and trial.

2) The F made a statement at the police that "F made the victim's her son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son.

3) F는 경찰에서 '피해자가 피고인을 밀쳐버리면서 서로 뒤엉켰다. 그러면서 피고인은 반쯤 앉아 있는 상태이고, 피해자는 마주보고 서 있는 상태였다. 그런 상황에서 피고인은 한손으로는 피해자의 가슴을 만지고, 다른 한손으로는 피해자의 치마 속으로 손이 들어갔던 것을 보았다. 하지 말라고 소리를 질렀는데도 계속해서 그 짓을 했다. 1분은 한참 넘었던 것으로 기억한다. 그래서 G이 둘을 떼어놓게 되었다.'고 진술하였고, 이 법정에서는 '당시 집에 들어가기 싫어서 밖에 있었는데, 피해자가 집에 들어갔다. 서로 말다툼을 하다가 피고인이 피해자의 넥타이를 잡아당겨서 가슴을 만졌고, 나머지 한손으로 치마 속에 손 넣는 것을 보고 너무 놀라서 하지 말라고 하고, G이 떼어 놓았다. 너무 무서워서 밖에서 통화하고 있었고, 현관문이 열린 상태에서 밖에 있었다. 피고인이 딸을 보호하려고 하면서 그렇게 된 것 같다. 피고인이 앉아 있었고, 피해자가서 있는 상태에서 다툼을 하다가 넥타이를 잡아서 당긴 다음 가슴과 하체를 만진 것 같다. 저를 기준으로 피해자는 등을 보이고 있었다. 집 안에 들어가지는 않았다. 피해자와 G이 피고인을 때린 것 같다. 피해자가 밀친 것은 봤고, G도 밀친 것 같다. 추행장면만 보았고, 그래서 횡설수설 하는 것 같다. 몸싸움이 있었던 것은 맞고, 누가 어떻게 때린 것은 못보고, 놀란 상태로 밖에 있었다. 피해자가 피고인 앞에서 서로 몸싸움을 했는데, 다른 부분은 기억나지 않는다. 저는 현관문 바로 앞에 있었고, G은 피해자 옆에서 방 안쪽에 있었던 것으로 기억한다.'고 진술하였다. G은 경찰에서 '강제추행은 솔직히 보지 못했다. 제가 피고인 뒤에 있었는데 어둡고 해서 자세히 보지 못했다.'고 진술하였고, 이 법정에서는 '제가 기억나는 것은 안방에 불이 꺼져 있었고, 저는 신발장에 서 있었고, 피고인과 피해자가 몸싸움을 하다가 같이 넘어졌는데, 피해자에게서 '아' 소리가 났고, 피해자가 안 일어나니까 제가 뒤에 있다가 피고인의 머리채를 잡고 떼어 냈다. 피고인을 때리거나 목을 조르거나 위에서 누른 적이 없다. F는 저랑 같이 뒤쪽 신발장에 있었다. 피고인이 피해자의 가슴을 만진 것과, 음부를 만진 것은 보지 못했다. F가 그만하라고 소리치는 것을 듣고 피고인을 떼어낸 것이 아니고, 피고인과 피해자가 같이 넘어지면서 피해자가 소리치는 것을 듣고 떼어냈다. 방안에 들어간 적이 없고, 피고인과 피해자를 떼어 내려고 들어갔다. 피고인이 피해자의 넥타이를 잡아 당기면서 한손으로 가슴을 만지는 것을 본 적이 없고, 피해자로부터 얘기만 들었다.'고 진술하였다. 피고인이 피해자를 추행하였는지 여부와 관련된 F와 G의 각 진술은 상반되는 면이 많다1). F와 G의 각 진술 내용에 이 법정에서의 진술태도와 진술의 뉘앙스까지 더해보면, G 진술의 신빙성이 F 진술의 신빙성보다 결코 낮아 보이지 않는데, 공소사실에 부합하는 F의 진술만을 근거로 피고인이 피해자를 공소사실 기재와 같이 추행한 것으로 단정하기는 어렵다. 피고인과 피해자가 몸싸움을 하는 과정에서 피고인과 피해자의 신체 접촉이 있었던 것으로는 보이지만, 피고인이 추행의 고의로 공소사실 기재와 같이 피해자를 추행한 것으로 단정하기 어렵다.

4) On June 4, 2016, the victim seems to have visited the hospital and her father who changed her mind to her will, and her body fighting took place, her chests and her part in the police station. However, the evidence submitted alone does not seem to have been her part in the police station in relation to the instant case at the time of committing the crime. It is difficult to eliminate the possibility that the victim might have distorted or distorted statements due to mental illness and damage assessment.

5) The victim filed a complaint against D by suffering from fraud from D at the time of the instant temporary border, and appears to have found D to be located in the house to receive the reimbursement of damage. Although the victim suffered from the Defendant the same damage as stated in the facts charged, he reported the Defendant’s assault and indecent act after about 20 months (the witness was also witness at the site). The details and motive of the complaint are not natural and difficult to understand.

3. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of facts constituting a crime, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the purport of public announcement of acquittal judgment pursuant to the proviso of Article 58