(b) Fraud;

C. Attempted Fraud

A

2.(b).

B

Attorney AM, AY, Z, BA, BB

The Prosecutor’s appeal against Defendant B is dismissed.

1. As to the Prosecutor’s ground of appeal on Defendant A

A. In a criminal trial, the conviction should be based on evidence with probative value that can lead a judge to have a reasonable doubt that the facts charged are true, and if there is no evidence to form such a conviction, the interest of the defendant should be determined even if there is no doubt as to the defendant's guilt: Provided, That such conviction should not be necessarily formed by direct evidence, but it can be formed by indirect evidence unless it violates empirical and logical rules. Even if indirect evidence does not have full probative value as to the facts of crime individually, if it is deemed that there is a comprehensive probative value that can not be established independently if it is established by mutual examination under mutual relation with the whole evidence (see, e.g., Supreme Court Decisions 9Do3273, Oct. 22, 199; 2007Do10754, Mar. 13, 2008).

나. 원심은, 이 사건 공소사실 중 살인의 점에 관하여 피해자가 타살되었음을 전제로, ① 피고인 A이 경제적으로 어려운 상황이었던 점, ② 피고인 A은 미혼모 인터넷 사이트를 통해 보모 구인광고를 하면서, '시설에 들어가기를 꺼리고, 가족이 없으며, 경제적으로 힘든 미혼모'만을 구인 대상으로 삼았고, 위 구인광고를 통해 피해자를 만난지 채 한 달도 안 되어 급하게 혼인신고를 함과 아울러 단기간에 집중적으로 삼성화재해상보험 주식회사, AIG생명보험 주식회사 및 메리츠화재해상보험 주식회사(이하 '주식회사'는 생략한다)와 사이에 피해자를 피보험자로 한 고액의 이 사건 보험계약들을 3건이나 체결한 점, ③ 피해자가 생전에 실제로 한 마지막 전화통화는 2007. 6. 6. 22:51경 전남 화순군 도곡면 일대에서 자신의 계모 Q에게 발신한 것인데, 위 통화 당시 피고인 A이 피해자와 함께 있었던 점, ④ 위 마지막 통화 후 피해자의 휴대전화 발신 내역은 같은 날 23:47경 광주 남구 주월동 기지국을 통하여 R에게 4초 간 발신된 것이 일한데 위 전화는 피고인 A이 피해자의 휴대전화를 소지하고 있다가 AO에서 0으로 이동하는 도중에 주월동 부근에 이르러 R에게 발신한 것으로 보이는 점, ⑤ 피고인 A은 피해자가 타고 있던 자동차가 드들강에 빠져 있던 장소(이하 '이 사건 사고장소'라 한다)를 정확히 알고 있었고, 피고인 B을 시켜 이 사건 사고장소에 차량이 빠져 있는 것을 2007. 6. 19. 및 6. 20. 양일에 걸쳐 공중전화로 신고하게 하였으며, 위와 같이 피고인 B이 신고할 때 그 옆에서 '떨지말어, 겁먹지 마, 망, 나무들, 화순방향, 샛길, 쭉, 화순 쪽으로 나가야지, 송림리서'라고 귓속말로 피고인 B에게 차량이 빠진 지점을 구체적으로 알려주었던 점, ⑥ 피고인 A은 위와 같이 신고 장소로 이동할 때 피고인 B에게 휴대전화를 가져가지 못하게 하는 등 알리바이를 철저히 관리하였고, 경찰이 신고자의 신원을 파악하는 과정에서 국립과학수사연구소의 감정결과에 따라 신고자 목소리와 피고인 B의 목소리가 일치한다는 사실이 드러나자 피고인 B에게 목소리를 바꾸는 성대 성형수술을 하라고 강권하기까지 하는 등 어떻게든 자신에 의해 이 사건 사고장소가 신고된 사실을 숨기려 한 점, ⑦ 한편 피고인 A은 2007. 6. 20. 및 2007. 6. 21. 유족 진술시에는 피해자를 피보험자로 한 고액의 이 사건 보험계약들을 체결한 사실을 숨긴 채 피해자 명의로 보험을 든 사실이 있느냐는 경찰의 질문에 '모른다'고 대답하고, 피해자와 동거한 기간이 한 달여에 불과하면서도 피해자와 동거를 시작한 시점을 2006. 12. 말경이라고 거짓 진술함과 아울러 피해자의 계모 Q에게도 피해자가 자신과 10개월 전부터 살면서 자신의 아이를 임신한 상태였던 것처럼 진술하도록 사주하는 등 의도적으로 사건에 대한 수사의 방향을 교통사고사 쪽으로 유도하고 자신에게는 피해자를 살해할 만한 동기가 없었음을 애써 나타내려 한 점, 8 나아가 피해자가 시체로 발견된 지 채 한 달도 되지 않은 2007, 7. 10. 삼성화재해상보험에 보험금을 청구한 것을 시작으로 2007. 8.경 및 2007. 9.경 이 사건 보험금 청구에 적극적으로 나선 점, ⑨ 피고인 A은 수사기관에서부터 원심 법정에 이르기까지 이 사건 당시 자신과 피해자의 행적 등에 관하여 수시로 진술을 번복하고 위 진술내용에 납득하기 어려운 부분이 많으며 그 가족들의 진술과도 어긋나는 등 이 사건 당시의 행적이 수상한 점 등 제반 사정들을 종합하여 보면, 피고인 A에게 교통사고를 가장하여 사망보험금을 수령할 목적으로 피해자를 살해할 만한 충분한 동기가 있었고, 피고인 A이 피해자의 사망 장소를 미리 알고 있는 등 피해자의 살해에 어떠한 형태로든 연관되어 있음을 넉넉히 추단할 수 있고, 나아가 실제로 피고인 A이 공소사실 기재와 같이 피해자를 직접 살해한 것이 아닐까 하는 매우 강한 의심이 든다고 판단하였다.

However, notwithstanding the above circumstances, the lower court acquitted Defendant A of this part of the charges on the grounds that there is a reasonable doubt as to the possibility that Defendant A was killed by a third party unrelated to the Defendant A at the time of the instant case and the result of the on-site inspection of the lower court based thereon, and that Defendant A murdered the victim, Defendant A was traveling from two parts of the victim and the vehicle, or was accompanied by the victim. It is logical to prove that: (a) there is no objective evidence to prove it; (b) Defendant A cannot specify the date and time of murdering the victim; and (c) there is no evidence to prove the fact that Defendant A was in the criminal scene at the time of the instant case, and (d) there is lack of evidence as to the fact that Defendant A was killed by a third party unrelated to the Defendant A; (b) Defendant A was not guilty of this part of the charges on the following charges on the premise that there is no reasonable doubt about the possibility that the victim was killed by the victim; and (c) Defendant A was guilty of the attempted attempted fraud of Samsung Fire Insurance Policy and Marine Insurance Policy.

(1) First of all, according to the currency content, the victim's last call with Q Q (the defendant A was the same as the victim at the time of the above currency) was sent from the Dolle around June 6, 2007 to the 22:51, and the mobile phone of the defendant A was first sent around the 23:22, the same day. Thus, if the defendant A murdered the victim, at around 22:51, the defendant A was killed at the place near the Domine-gun, and then it was impossible to murder the victim at around 3:22,00,00, and then, at around 3:0,000, it was impossible to view the above part of the vehicle as the mobile base at the 23:51 to 23:22,00,000,000, to 31:00,0000,000,0000,000,000,000).

However, according to the evidence duly adopted by the court below, since the victims and Defendant A’s telephone calls around June 2007 were widely displayed, such as “the Dol-gun Dol-gun Dol-gun Dol-gun Dol-gun Dol-gun Dol-gun Dol-gun Dol-myeon,” and the following facts were not indicated in the administrative district unit, the court below should have taken into account the possibility that the victims were sent from the point of “the Dol-gun Dol-gun Dol-gun Dol-gun Dol-gun Dol-gun Dol-gun Dol-gun Dol-gun Dol-gun Dol-gun Dol-gun Dol-si Dol-gun Dol-si Dol-si Dol-si Dol-si Dol-si Dol-si Dol-si Dol-si Dol-si Dol-si Dol-si.”

Nevertheless, the lower court concluded that Defendant A was less likely to directly murder the victim during the distance of movement and the required time based on only the required time and the location of the base station due to the result of on-site inspection, which is not considered in light of the above overall circumstances. Ultimately, suspicion based on the circumstances as stated in the lower court’s holding cannot be deemed as a reasonable doubt.

(2) Next, the lower court determined that, if Defendant A murdered the victim, it is logical to view that Defendant A and the victim should use the two vehicles, or to return another vehicle that was moved by using the two vehicles, or which was prepared at the place where the crime was committed, and there is no objective evidence to prove this.

However, according to the evidence duly adopted by the court below, at around 22:51 on June 6, 2007, the defendant A and the victim were in the vicinity of the Dol-gun Dol-gun Dol-gun, but the victim was married to the Dol-gun Dol-gun Dol-si Dol-si, but the defendant A was forced to leave the victim (the 186 pages, the 5th 4th 70, 771th of the trial record, the 5th 5th 5th 771th of the investigation record), and the 2nd 23:0 on June 6, 2007, which was presumed to have died of the victim, the damage on June 11, 2007, which is the nearest time

At the end of 23:00 in the vicinity of the Doldong-gun, the victim stated that the victim, alone, went into driving practice at around 23:0, while making the family statement on June 20, 2007 and June 21, 2007, the defendant A took the fry to AJ in order to take the fry of the fry of the fry in the fynachil car, and the victim took driving practice at around 6:0 on June 6, 2007, and the victim stated that the fyer stated that the fyer took driving practice at around 5:2, 904, 907, 5:30, 307, 5:30, 303 of the investigation record, and 6:1) the victim's statement to the effect that the fyer stated at the investigative agency on July 10, 2007 (5.6).

Comprehensively taking account of the foregoing, there is sufficient room to see that Defendant A and the victim operated each other’s vehicle at the end of June 6, 2007. Therefore, the lower court’s determination otherwise did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, barring any other circumstances.

(3) In addition, the lower court determined that it was insufficient to prove that Defendant A was at the scene of crime at the time of the instant case, the most important indirect fact.

However, according to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the Defendant A and the victim were in the vicinity of the Doldong-gun, Doldong-gun, on June 6, 2007, at around 22:51, and around 23:47, when the victim took a cellular phone, and the victim took a cell phone, around 1 hour after the victim took a cell phone, and sent the cell phone to R to the base station located in the Nam-gu, Nam-gu, Gwangju. The victim was pregnant with R before the victim was married with the Defendant, and the victim was close to the extent that the text message and the text message were sent at 88 times during the nine-day period prior to the date of the marriage with the Defendant, and the victim was informed the Defendant as the victim’s friendship, and the victim knew the Defendant Company A as the victim’s Ra was missing, and the victim knew the Defendant Company A as the victim’s Doldong-gu.

In light of this, it is reasonable to view that Defendant A did not have the victim’s mobile phone in light of the empirical rule, since the victim could easily spread his/her own mobile phone to Defendant A, if he/she had the victim’s mobile phone from the presumed perspective after the victim’s death. Thus, if Defendant A had the victim’s mobile phone from the presumed perspective after the victim’s death, it can be deemed as an indirect fact that Defendant A had the victim’s mobile phone without the victim’s intention.

Therefore, the court below should have deliberated and determined more closely whether Defendant A was in possession of the victim’s cell phone and the circumstance of its possession. The court below should have deliberated and determined more closely as to whether Defendant A could be deemed an indirect fact at the time of murdering the victim, including the fact that Defendant A was aware of the location of the victim’s cell phone with the vehicle and that Defendant A was unable to make a prima facie evidence for the reasons why the victim became aware.

(4) Meanwhile, even if Defendant A cannot specify the date and time of murdering the victim, and the method does not appear at all, the lower court cited as the grounds for reasonable deliberation on the possibility of the victim’s murdering by a third party unrelated to Defendant A. However, in cases of murder, the date, time, place, and method of the crime are not the elements of the crime, and where it cannot be clearly recognized, it cannot be deemed that there is a sufficient basis for reasonable doubt solely based on the aforementioned circumstances (see Supreme Court Decision 2008Do507, Mar. 27, 2008).

(5) Ultimately, while the court below cannot be deemed to have proved the major indirect facts that form the basis for recognizing the facts charged of this case, the grounds presented as the basis for its deliberation are either unreasonable or insufficient. Therefore, it cannot be deemed that the indirect facts that correspond to the facts charged of this case among the facts charged of this case have been proven, at least for the same reason as the court below decided. In rejecting this, the court below erred by misapprehending the legal principles of reasonable deliberation in regard to the crime of murder, or by failing to exhaust all necessary deliberations in view of the facts mistakenly alleged in the premise. The prosecutor’s grounds of appeal assigning this point

However, according to the circumstances stated in its holding, the lower court determined that the victim was able to commit suicide and that the victim died by leaving the vehicle into the river due to the absence of driving, etc., rather than leaving the vehicle in the river, but appears to have failed to closely examine the objective evidence and circumstances about the efficacy of the victim, even though it appears that the victim was shot off from the edge of the road to the point where the victim was seated, the lower court did not have sufficient examination of the objective evidence and sufficient circumstances. The lower court also examined the following facts: (a) the distance from the edge of the road to the point where the victim was seated; (b) the level of the vehicle at the time of the accident; (c) the direction and speed of the river; (d) the flow of the river; and (d) whether the vehicle was moving into the river for the duration of the time until the vehicle shot up; (d) whether the victim was able to enter the vehicle under the influence of the victim due to the actual condition; and (e) whether it was necessary to determine the physical possibility of the victim's accident and its condition.

D. Meanwhile, the lower court acquitted the Defendant on the primary charges regarding the fraud of Samsung Fire Maritime Insurance on the premise that the murder among the facts charged in the instant case is not guilty, and each attempted fraud of AIG life insurance and Mez fire Maritime Insurance. However, insofar as the lower judgment on the murder should be reversed as seen earlier, the primary charges regarding the above fraud and attempted fraud should be reversed, and as long as the part of the primary charges as above is reversed, the lower court’s conviction on the ancillary charges cannot be maintained.

Furthermore, the facts charged in the instant case are based on the premise that the victim was killed by the Defendant, or the Defendant and his accomplice. However, according to the records, in the case of Samsung Fire and Marine Insurance, the insurance money should be paid for the insurance accident caused by the 'accident of the automobile covered' in the insurance clause. Thus, in order to constitute deception in fraud, the Defendant’s act of claiming insurance money should be recognized to have received insurance money even though it was aware that the cause of the victim’s death was not caused by the accident of the automobile insured in fraud. However, the lower court, without any specific deliberation, erred by applying this part of the facts charged to the crime of fraud.

In addition, in the case of AIG life insurance and Mez fire insurance, insurance money is required to be paid for the insurance accident caused by the 'disaster' under the insurance clause, and the 'case where the beneficiary or the policyholder intentionally damages the insured' does not pay insurance money. In such a case, the defendant's claim for insurance money for AIG life insurance and Mez fire insurance is deceiving fraud.

In order to constitute the above, it should be recognized that the defendant, either alone or together with his accomplice, filed a claim for insurance proceeds with the above insurance company even though he knows that the requirements for payment of insurance proceeds are not satisfied. However, as seen earlier, if the original judgment of innocence on murder ought to be deemed that the victim was killed not by the defendant or his accomplice but by a third party, the part of the attempted fraud of the ancillary charge of AIG life insurance and M&D fire insurance, which the court below found guilty, is inconsistent with the judgment of innocence by the court below.

Ultimately, the lower court’s judgment that found the Defendant guilty of the fraud and attempted fraud of the ancillary charge cannot be maintained in this respect.

E. Therefore, the lower court’s finding Defendant A guilty of fraud of Samsung Fire and Marine Insurance, the ancillary facts charged as to attempted fraud of AIG life insurance and merz fire and marine insurance, and the ancillary facts charged in relation to concurrent crimes under the former part of Article 37 of the Criminal Act should be reversed together with the insurance fraud part, and so long as the aforementioned ancillary facts charged are reversed. Ultimately, without examining Defendant A’s grounds of appeal, the part of the lower judgment against Defendant A in its entirety cannot be reversed.

2. As to the Prosecutor’s ground of appeal on Defendant B

Examining the reasoning of the judgment below in light of the records, we affirm the judgment below's finding the Defendant B not guilty of the fraud of the Defendant B's Samsung Fire Marine Insurance, and of the attempted fraud of AIG life insurance and Matz fire marine insurance, and there is no violation of the principle of free evaluation of evidence against logical and empirical rules as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant A is reversed and remanded to the court below for a new trial and determination. The prosecutor’s appeal against Defendant B is without merit, and it is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo

Justices Park Jae-hee in charge

Justices Go Young-young