B. The case reversing the judgment of the court below on the ground that there were errors in the misapprehension of legal principles as to the probative value of evidence by finding the defendant guilty of a crime causing rape based on the victim's statement with no credibility, such as the reversal of the statements specifically made before the prosecutor before the judicial police assistant, which found that the defendant had sexual intercourse with the defendant.

B. The case reversing the judgment of the court below on the ground that there were errors in the misapprehension of legal principles as to the probative value of evidence by finding the defendant guilty of a crime causing rape based on the victim's statement with no credibility, such as the reversal of the statements specifically made before the prosecutor before the judicial police assistant, etc. concerning the material evidence which prove that the defendant had sexual intercourse with the defendant

The case is remanded to Seoul High Court.

1. The lower court reversed the first instance judgment that acquitted the Defendant on the following grounds, and sentenced the Defendant guilty of the injury resulting from rape in the instant case.

A. The summary of important matters that the victim made by the investigative agency from September 8, 1989 to the judgment of the court below is the victim's house located in 3:2:30 of the same year from September 20, 1989 to the defendant, and the victim, who was locked, was used in the embankment under the influence of alcohol, and the victim's husband, was not able to do so. At the same time, the victim was able to do so at the 10th place after the school of the Republic of Korea, and 3:0 of which the victim went under the influence of the victim's 10th half of the 10th day after 3th day of the 10th day of the 3th day of the 10th day of the 10th day of the 3th day of the 10th day of the 3th day of the 3th day of the 1st day of the 3th day of the 1st day of the 3th day of the 1st day of the 3th day of the 3th day of the 1st day.

B. Although Non-Indicted 2’s statement was made in the first instance court, it is difficult for the victim to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able.

다. 피해자가 강간을 당한 지 이틀 후인 1989.9.10. 23:00경 피고인을 무릉계곡 산장휴게소로 불러내어 그 곳 화장실 근처에서 30분 내지 1시간 가량 이야기를 주고 받았으며, 2시간 가까이 걸리는 인적 드문 산길을 걸어 함께 내려오다가 도중에 또다시 피고인으로부터 강간당하였다는 부분도 강간 피해자의 거동으로서는 쉽사리 납득이 가지 아니하나, 피해자의 원심 공판정에서의 진술에 의하면, 피해자는 남편과 평소 절친한 친구인 피고인으로부터의 강간이라는 상식으로 수용하기 힘든 일을 당하게 되자 자괴심으로 인하여 남편을 대하기가 두려웠고, 또한 평소 남편과 절친하면서 성격도 얌전하던 피고인으로부터 당한 연유가 납득이 가지 아니하여 마음에 갈피를 잡지 못한 상태에서 피고인을 만나 특별한 이유의 유무를 알아 보려고 조용한 산장으로 피고인을 불러 내었고, 대화를 나눈 후 교통편이 끊겨 먼 길임에도 불구하고 걸어 내려오게 되었다는 것인바, 당시 피해자로서는 남편 친구로부터의 강간사실을 알고난 후 남편이 받을 충격과 그것이 가정의 평화에 미칠 영향을 고려하지 않을 수 없었을 것이므로, 남편이나 외부 사람들에게 강간사실을 섣불리 알리지 못한 채 이 일을 경찰에 알려 피고인으로 하여금 처벌을 받게 할 것인지, 아니면 남편과 피고인의 우정에 금이 가지 않도록 하고, 양쪽 가정의 평화를 유지하기 위하여 비밀로 묻어둘 것인지 번민한 흔적을 역력히 찾아볼 수 있어,비록 강간을 당한 가정주부의 거동으로서는 납득하기 어려운 일면이 있기는하나, 지나가던 불량배가 아닌 남편과 절친한 친구로부터 강간을 당하였다는 이례적 상황에서 보게 되면, 피해자의 거동에 수긍이 가는 다른 측면도 없지 않다고 할 것이므로, 이와 같은 피해자의 납득하기 어려운 거동을 들어 피해자가 한 진술의 신빙성을 탄핵할 이유로 삼기에는 부족하다.

라. 피해자가 무릉계곡에서 피고인을 만나고 내려온 1989.9.11. 23:00경 손윗동서인 공소외 3과 함께 있던 자리에서 비로소 남편 공소외 1에게 처음으로 피고인으로부터 강간사실을 고백하였다는 것이고, 이에 접한 공소외 1은 펄펄 뛰다가 24:00경 피해자와 공소외 3을 대동하고 피고인의 집으로 찾아갔으나, 피고인이 술에 취하여 자고 있다는 처와 어머니의 말을 듣고 그냥 물러 나왔다는점도 강간 피해자 및 그 가족의 거동으로서는 쉽사리 납득이 가지 아니하는 부분이기는 하지만, 증인 공소외 1, 공소외 3의 원심 공판정에서의 각 진술에 의하면, 피해자의 남편인 공소외 1로서도 처가 친한 친구로부터 강간을 당하였다는 충격적인 말을 듣고 놀라움, 분함, 배신감에 휩싸인 채 피고인의 집을 방문하였으나, 피고인의 어머니와 처가 울면서 사정을 하고, 동네가 창피하기도 하여 형수인 공소외 3 등이 말리는 데 따라 법에 호소하기로 마음을 고쳐 먹고 그날 밤에는 피고인을 깨우지 아니한 채 순순히 피고인의 집을 물러 나왔다는 것인바, 피해자의 남편으로서 공소외 1이 처음 느낀 분노의 감정에서 이해하자면 술에 취해 잠잔다는 피고인의 어머니와 처의 말에 그대로 물러서 피고인을 깨우지 조차 아니하였다는 거동은 매우 납득하기 어려운 점이 있다고는 하겠으나, 한편 평소 절친하던 친구의 어머니와 처 등의 애절한 호소와 형수의 만류 속에서 공소외 1이 분노를 삭이고 이성을 되찾아 정당한 법적 절차를 밟아 억울함을 호소하기로 마음을 되돌림으로써, 피고인을 깨워 물리적 충돌에 가까이 가는 더욱 불행한 사태를 미리 막고 순순히 되돌아 나와 다음날인 1989.9.12. 피해자에 대한 진단서를 발부받아 형인 공소외 4를을 통하여 관할 경찰관서에 이 사건 범행을 신고함으로써 이 사건 수사를 개시하게 한 사정 속에서 보자면, 그와 같은 거동을 수긍하지 못할 바도 아니라 하겠으므로, 피해자 부부의 위와 같은 거동을 들어 피해자가 한 진술의 신빙성을 탄핵할 사유로 삼기에도 부족하다.

E. From this point of view, the above statements made by the victim during the crime of this case are sufficient to acknowledge the credibility of the victim's statements, and even if the results of the detection test conducted by the defendant and the victim, according to the victim's statements in the court of first instance and the court of original instance, it is hard to find out that the victim's new wall victims were able to find out their body at around 12:0, and that it was hard to find out the victim's whereabouts after the victim's testimony during the crime of this case and the victim's statements made during the crime of this case, and that the victim's statements were insufficient to find out the victim's whereabouts during the crime of this case, and that there was no other evidence that the victim had been able to find out the victim's whereabouts during the crime of this case, and that there was no other evidence that the victim had been able to find out the victim's whereabouts during the crime of this case, and that there was no other evidence that the victim had been able to find out the victim's whereabouts of this case.

2. The finding of facts must be based on evidence in a criminal trial, and the finding of guilt must be based on evidence with probative value sufficient to cause a judge to feel true that the facts charged are true beyond a reasonable doubt. Thus, if there is no evidence having such probative value, it is inevitable to determine the defendant's interest even if there is a doubt about guilt against the defendant. However, considering the evidence cited by the court below compared with records and records, it is difficult to view the judgment of the court below as reasonable in light of the above facts, in light of the logical and empirical rules.

A. As to the statement of the victim

When preparing the second statement by the judicial police assistant, the victim made a statement to the effect that he was late back to panty without checking where he was raped by the defendant and returned to panty (the back of the investigation record 27 pages). When the prosecutor prepares the second statement, he made a statement to the effect that he did not come back to panty anywhere (the investigation record 200 pages) and that he continued to make the above statement to the same effect until the court below's official decision (the investigation record 200 pages). Thus, even if the victim did not make a statement because she was fright back to the fear of rape and fright, or did not make a statement to the effect that he was fright back to fright, as decided by the court below, and the victim did not reverse the above part of the defendant's physical evidence which could be found to be credibility even if she did not reverse the circumstances of the crime in this case.

B. As to the Dong of Non-Indicted 1, who is the husband of the victim and his husband

(1) According to the statement in the court of first instance and the statement of the victim prepared by the prosecutor on March 6, 192 in the court of first instance, the new meeting of the witness witness was not on the part of the victim's wife while accompanying the defendant's wife, but on that day, the victim made a statement somewhat different from the court of first instance. However, as determined by the court below, the remaining statement of the court below, including that the victim directly made the victim's clothes that he want to die within the above two parts of the body of the witness, and that the victim's remaining statement is on the part of the investigative agency and the court of first instance and the court of first instance, and the victim also made a statement in the court of first instance on September 10, 1989, and it was difficult for the court of first instance to conclude that the victim's new part of the body of the victim's body was on the part of the victim's body of the defendant's body, and it was difficult for the court below to see that the victim's new part of the body of the defendant's body.

In addition, even if based on the facts acknowledged by the court below, the fact that the victim was raped on September 9, 1989, which was the day following the day when the court below found that he was hospitalized in the hospital to receive treatment of the wife on September 12, 199 (the investigative record 8 pages, 110 pages, and 455 pages) cannot be said to be difficult to understand as the victim's movement.

(2) 피해자가 강간을 당한 이틀 후인 1989.9.10. 23:00경 동해시내에서 약 4km 이상 떨어진 인적이 드문 무릉계곡 산장휴게소로 강간범인이라는 피고인을 불러내어 30분 내지 1시간 동안 단둘이 이야기를 나누었다는 것은, 설사 원심이 판시한 바와 같이 피해자가 남편과 평소에 절친한 친구이고 성격도 얌전하던 피고인으로부터 강간을 당한 것을 납득할 수 없어서 번민한 끝에 피고인을 조용히 만나 강간을 한 이유를 따져보기로 작정한 끝에 취한 행동이라고 하더라도, 강간을 당한 피해자로서는 좀처럼 취하기 어려운 거동임이 경험법칙상 명백하므로, 이와 같은 사정을 피해자의 진술의 신빙성에 대한 탄핵사유로 삼는 것이 부당하다고 할 수 없다.

(3) If Nonindicted 1, who became aware of the fact that the victim was raped, was the husband of the victim, called the victim and Nonindicted 3, who was the head of the defendant's house, and found the victim's wife. However, it cannot be denied that: (a) the defendant's wife and mother, who was under the influence of alcohol, listened to the horses of the defendant; and (b) he did not pursue rape and the circumstances; and (c) he left the match without forcing the defendant; and (d) even if it is due to the fact that Nonindicted 1, as determined by the court below, complained of the mother and wife of the child-friendly friened friened feas and feasented by Nonindicted 3, who was able to take legal procedures, it is difficult to understand that the wife's wife was rape, knowing that he was raped, and found the feasent as her husband's wife

C. As to the statements from the former, the former, the latter, the latter, Nonindicted 3, and Nonindicted 5, etc.

The Defendant stated that the former and the husband of Nonindicted 1, the husband of Nonindicted Party 1, the husband of the victim, made an agenda of punishment. According to the statement written by the judicial police assistant, according to the statement written by the person who raised an objection to the preparation of the judicial police assistant, the victim may have known that he was named “third village” (the rear side of the investigation record 93), and considering the fact that the other party who confirmed the fact that the victim was sexually raped is the interest of the victim, the former and the former husband are acknowledged to have been sexually in the same manner as Nonindicted Party 1 and the husband and wife, and Nonindicted Party 3 is between the victim and the Dong, and Nonindicted Party 5 is the father of the victim. Thus, it is difficult to view that each statement made by the investigative agency, the first or the court of first instance or the court of appeal in the court of appeal is favorable to the victim’s side, and in light of the evidence seen in the following sub-paragraph (e), it is also difficult to view that there is credibility.

(d) As to the entries of seized gold litra (No. 1) and of a medical certificate on the victim’s stuffed preparation.

The Defendant stated from the beginning to the above Lata but it was lost one month prior to the occurrence of the above damage (in the face of 54, 73 of the investigation record). Since the Defendant’s statement is supported by Nonindicted 6’s investigative agency from Nonindicted 6 to the judgment of the court below, it is difficult to find the Defendant guilty of the facts charged in this case solely on the fact of the existence of Lata, unless it is recognized that Nonindicted 3 and the victim’s statement on the background leading up to the discovery of the above Lata are reliable, and unless it is recognized that the above Lata’s statement is reliable, it is difficult to conclude that the Defendant’s statement on the victim’s statement on the diagnosis document prepared by the doctor is related to the facts charged in this case, unless it is recognized that each of the statements by the victim and the victim is reliable.

E. Meanwhile, according to the consistency between the investigative agency and the first instance court or the original trial court in order to the effect that, around September 8, 1989, the date of the crime of this case, the Defendant left from the transportation company where the Defendant, leap and e-mail were on duty together with the Defendant, and continuously left from the transportation company where the Defendant had been on duty, such as leap and e-mail, and e-mail, which are the company’s club fee, the Defendant’s fee, e-mail, and e-mail, where Nonindicted 6 was an employee, the body of the Defendant could not be accumulated. If leap and e-mail were to 23:00, there was no doubt that the Defendant could not have raped the Defendant at the time of the crime of this case. Thus, even if the Defendant was on duty to e-mail and e-mail, it cannot be concluded that there was no sufficient time to conclude the Defendant’s testimony or e-mail of the victim’s body as the victim’s testimony or e-mail.

3. Nevertheless, the court below found the defendant guilty of the facts charged of this case only based on the above evidence. The court below did not err by misapprehending the legal principles as to the probative value of evidence in a criminal trial, or by misunderstanding the legal principles as to the probative value of evidence, and it is clear that such misunderstanding has affected the conclusion of the judgment. Thus, there is a reason to point this out.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the appeal.

Justices Yoon Jae-ho (Presiding Justice)