강간등
The prosecutor's appeal is dismissed.
1. Summary of grounds for appeal: The statement of the victim's investigative agency claiming misunderstanding of facts is more reliable than the victim's statement in the original court.
Comprehensively taking account of the victim’s statement in investigation agencies, victim’s bucks’ photographs, and the victim’s complaint for divorce, the part of the facts charged that the Defendant committed assault and intimidation against the victim at the time of sexual intercourse with the victim to make it impossible to resist.
Even so, the lower court erred by misapprehending the fact that there is no proof of facts charged, thereby adversely affecting the conclusion of the judgment.
2. The Criminal Procedure Act of Korea adopts the substantial principle of direct deliberation that the formation of conviction and innocence against the substance of a criminal case ought to be based on a court-oriented trial that is based on the principle of public trial, and that only the evidence directly examined in the presence of a judge can be based on the trial and the original evidence near the facts to be proved should be based on the trial, and that the use of the substitute for the original evidence should not be permitted in principle in a way that directly investigates the original evidence in a court. This is because a judge can form a new and accurate conviction through the method of directly investigating the original evidence, and the defendant can realize a fair trial by providing a direct opportunity to state his/her opinion on the original evidence.
In particular, the court presiding over the criminal procedure shall ensure that the above substantive spirit of the direct psychological principle is fully and fully realized in the court of first instance, which is the principle procedure in which the parties’ allegations and evidence are taken place, centering on the court in the process of criminal proceedings and the trial process (see Supreme Court Decision 2006Do4994, Nov. 24, 2006). In addition, the criminal appellate court has the character as a follow-up trial even after the fact that the criminal trial has the character as a follow-up trial and has the substantive substance prescribed in the Criminal Procedure Act.