[Defendant-Appellant] Plaintiff 1 and 5 others

1. Facts charged, judgment of the first instance court, and the reasoning of the judgment below

A. The summary of the facts charged of this case is as follows: (a) the Defendant is the convenience store employee of the convenience store development team and the victim is the convenience store; (b) the Defendant found the convenience store operated by the victim on April 24, 2017; (c) the victim discovered that he is working alone at that place and attempted to commit an indecent act against the victim; (d) on the same day, the victim shows the documents to the head of the victim while explaining his duties; (e) the victim was able to explain his duties; and (e) the victim was her head with his own care; (e) even though the victim expressed his intention of refusal while pushing the Defendant, the victim was forced to take the head of the victim, and (e) the victim committed an indecent act by force on the part of the defendant, around 16:35 on the same day, and (e) the victim took care of the victim's face, and (e) the victim forced the victim to see his right hand over the victim's left hand, and (e) the victim's face was forced to her own hand over the victim.

B. The first instance court found the victim guilty of the facts charged on the grounds that the victim’s statement on the grounds of damage was specifically and consistent after examination of the victim’s witness, consistent with the CCTV image photographs, and even if the victim was in preparation for divorce with his spouse at the time, it is difficult to deem the victim to be a motive for making a false report even if the victim was in preparation for divorce. However, the lower court concluded the arguments without additional evidence examination (the prosecutor submitted the victim’s marital relation certificate and submitted the victim’s written application for confirmation of the victim’s intention of divorce upon request for the delivery of documents by counsel, but all were not requested as evidence), and rejected the credibility of the victim’s statement and the probative value of CCTV image on the grounds that the evidence was based on the evidence examination conducted in

1) Although the victim shows the attitude of avoiding the Defendant’s physical contact in CCTV images, it does not seem that the victim forced contact against the victim’s will by avoiding further contact to the extent possible, and by continuously and continuously making physical contact with the victim. The aforementioned form does not appear to have been the attitude of the person who had committed an indecent act previously expressed by the victim.

2) It is difficult to view that there was so-called “A” relationship where the Defendant and the victim cannot actively refuse to commit an indecent act.

3) At the time of the Defendant’s physical contact, the victim seems to have been aware of the possibility of returning CCTV images immediately after the occurrence of the instant case, such as voluntarily stating that “I have been in vain.” and having been aware of the possibility of not making it an indecent act due to one’s own ruling.

4) The victim appears to have been suspected of being out of the spouse, and there is a possibility that he reported his physical contact with the Defendant as an indecent act by force in order to relieve his responsibility even during the process of divorce to his spouse.

5) On the day of the instant case, it is difficult to obtain the victim’s statement that the Defendant entered a convenience store office for the victim’s work without any explanation and forced access to CCTV perusal. Rather, the Defendant stated in detail matters that are difficult to care without direct experience as to the process of entering the above office.

6) The victim seems to have been divided into a large number of conversations between the Defendant and the victim, such as the Defendant’s personal knowledge of the victim and the Defendant’s frequent phone details.

2. Determination

However, the above judgment of the court below is hard to accept.

A. In light of the difference between the first instance court and the appellate court’s method of evaluating the credibility of the statement made by a witness of the first instance according to the spirit of the direct hearing principle adopted by the Criminal Procedure Act, the first instance court’s determination on the credibility of the statement made by the witness of the first instance is not to be reversed without permission on the ground that the first instance court’s determination on the credibility of the statement made by the witness of the first instance was clearly erroneous in light of the contents of the first instance judgment and the evidence duly examined by the first instance court, or exceptional cases where it is deemed that maintaining the first instance court’s determination on the credibility of the statement made by the witness of the first instance is remarkably unfair after considering the results of the first instance’s examination and the results of additional evidence examination conducted by the time of closing the argument of the appellate court, the appellate court should not reverse without permission on the ground that the first instance court’s determination on the credibility of the statement made by the witness of the first instance court is different from the judgment made by the appellate court (see, e.g., Supreme Court Decisions 2006Do717810.

The circumstances pointed out by the appellate court after the judgment of the first instance court was accepted as credibility of the victim's testimony at the first instance court, and mainly based on evidence duly adopted and examined by the first instance court, etc., and the circumstances revealed as a result of further examination of evidence at the lower court do not constitute "special circumstances" if it is merely a circumstance such as sending text messages after the crime (see Supreme Court Decision 2008Do7917, supra). In addition, even if the circumstances pointed out by the appellate court following the judgment of the first instance court appear to be only a part of the various circumstances already considered in the first instance court's determination of credibility of the victim's testimony, the same applies unless there exist any special circumstances that could be sufficient to follow the judgment of the first instance court due to special circumstances (see Supreme Court Decision 2010Do8227, supra).

B. Examining the above legal principles, it is difficult to readily conclude that the lower court’s determination of the first instance court on the credibility of the victim’s statement and the probative value of CCTV images accordingly constitutes an exceptional case where it is obviously erroneous or unreasonable to maintain the said determination.

First, while the statement of the victim is consistent, the statement of the defendant has been changed in the direction of emphasizing the unity of the opinion with the victim.

1) The victim reported to the police on the day of the instant case, made a statement of damage, and made a statement in a consistent manner with the testimony of the first instance court. The purport is as follows.

A) Even though prior to the date of the crime indicated in the facts charged, it was difficult for the victim to strongly respond to the defendant, who is an employee of the head office, as the main agent into the key concept of sub-lease. (B) At the time of committing the crime, the victim stated that the defendant was "unfortuous" while pushing the defendant, but it was difficult for the defendant to continuously contact the victim's body and to resist the victim's name by selling.

2) The Defendant’s statement was modified as follows.

A) As to the circumstances prior to the crime, the statement was made in the police investigation that the victim unilaterally satisfyed, but the statement was made in the prosecutor’s investigation that the victim had been in the relationship with satisfy, and the statement was made in the first instance trial that the victim developed in the relationship with satisfy several times and satisfy.

B) As to the crime described in the facts charged, ① in the police investigation, the statement was made, “The fact that it was due to the fact that the Defendant was faced with the wound, and that it was the same as the fact that the Defendant was faced with the wound,” and ② in the statement made after ten days, the victim seems to be even aware of it. ③ In the Defendant’s newspaper at the lower court, the statement was made, stating, “The victim was inside the body of 20 seconds,” and “The victim was able to see, and the victim was able to see, she was able to do so.”

3) The circumstances cited in the lower court are generally the following: (a) the relationship prior to the crime and the credibility of the victim’s statement that is inconsistent with the Defendant’s aforementioned circumstances at the time of the crime; (b) the fact is insufficient to reverse the first instance court’s determination that affirmed the credibility of the victim’s statement; or (c) the circumstances pointed out in the investigation and the first instance court’s process were merely the circumstances that the first instance court had already considered while determining the credibility of the victim’s statement.

4) The circumstances of the lower court revealed that the credibility of the victim’s statement related to the instant facts charged are merely secondary circumstances, and there is also a circumstance that the Defendant’s statement concerning the process of entering the convenience store office operated by the victim and printing out the settlement statement is not consistent.

5) In relation to the circumstances indicated in the lower judgment, the victim’s statement is difficult to readily conclude that the Defendant was aware of the personal information of the victim through dialogue with the victim, on the ground that the Defendant asked the victim about personal information other than his/her duties and responded to the personal information as if the Defendant performed his/her duties of the convenience store establishment aptitude test, and that it does not include personal information. Moreover, in March 2017, it is difficult to readily conclude that the victim started the business of convenience store through the Defendant, based only on the number of telephone calls and telephone calls for the victim at that time, and telephone calls for the victim at that time, and most text messages sent and received by the Defendant and the victim are related to the opening of convenience store business. Moreover, the lower court’s judgment is difficult to accept for the following reasons.

1) The degree of countermeasures against sexual assault victims is bound to vary depending on their gender, relationship with the perpetrator, and specific circumstances. Therefore, readily rejecting the probative value of the victim’s statement without sufficiently considering the special circumstances where the victim, such as sexual assault, is faced in individual and specific cases, cannot be deemed as evidence determination in accordance with logical and empirical rules based on the principle of justice and equity (see Supreme Court Decision 2018Do7709, Oct. 25, 2018). Since the crime was committed, the victim’s attitude cannot be readily rejected without permission on the ground that there are circumstances where the victim cannot be seen as “the victim who ought to take such response” (see Supreme Court Decisions 2020Do6965, Aug. 20, 202; 202Do8531, Sept. 3, 2020). It is also unreasonable for the lower court to view the victim’s body to the extent that it is difficult for the victim to respond to the foregoing legal doctrine.

2) Furthermore, the lower court deemed that there was a possibility that the victim made a false statement in order to relieve his/her responsibility from the circumstance of divorce after committing the crime. However, even according to the lower court’s recognition, the victim applied for confirmation of intention of divorce after 4 days from the crime and completed the divorce report prior to the prosecution after obtaining confirmation of intention of divorce in accordance with the relevant statutes, and the circumstance that the victim secured less responsibilities or more favorable status due to the instant report cannot be confirmed in the record.

D. Therefore, the court below should have carefully judged the credibility of the victim's statement through additional examination of evidence, not by rejecting the probative value of the evidence of the first instance court on the basis of the circumstances that the first instance court had already taken into account or secondary circumstances, but by taking account of the fact that the first instance court did not dismiss the probative value of the victim's statement based on the evidence that was found guilty (if the CCTV images contained in the crime of this case were compiled short among the circumstances cited by the court below, it is necessary to additionally examine the circumstances, such as the circumstances submitted after the short editing of the CCTV containing the contents of the crime of this case). Nevertheless, the court below's decision rejecting the credibility of the victim's statement and the probative value of the evidence that the first instance court had found on the grounds of conviction, which violated the principle of court-oriented trial and direct examination, thereby violating the rules of experience and rule of evidence. The prosecutor's ground of appeal pointing this out has merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-in

Justices Min Il-young in charge