The method of determining the probative value of an injury / Where it is issued only on the basis of a medical possibility based on the victim's subjective appeal, etc. that the injury diagnosis certificate mainly has pain;

In a criminal case, an injury diagnosis may serve as an important evidence proving the Defendant’s criminal facts, along with the victim’s statement. However, the existence of the fact of injury and the causal relationship may be acknowledged to have reached such a level that there is no reasonable doubt. As such, when there are circumstances to suspect the objectivity and credibility of the injury diagnosis report, it shall be very careful in determining the probative value. In particular, when an injury diagnosis report is issued only based on the victim’s subjective appeal, etc., where it is issued based on medical possibility, the date and time when the injury occurred and the date when the diagnosis report was prepared are adjacent to the time and time when the injury occurred, and there is no circumstance to suspect the credibility in the process of issuing the injury diagnosis report, whether the cause and degree of the injury as indicated in the injury diagnosis report coincide with those of the victim’s assertion, whether there is any inconvenience for the victim to appeal, and whether a doctor may be readily deemed a new cause irrelevant to the victim’s body, as well as examining the grounds for the issuance of the injury diagnosis report, a thorough examination of logical and empirical rules should be determined.

Article 257(1) of the Criminal Act; Article 308 of the Criminal Procedure Act

Supreme Court Decision 2010Do12728 Decided January 27, 2011 (Gong2011Sang, 540)

Defendant

Defendant

Law Firm Barun (LLC, Attorneys Park Jae-sik et al., Counsel for the plaintiff-appellant)

Busan District Court Decision 2015No2695 Decided September 8, 2016

The judgment below is reversed, and the case is remanded to Busan District Court.

The grounds of appeal are examined.

1. In a criminal case, an injury diagnosis report may serve as a valuable evidence proving the Defendant’s criminal facts, along with the victim’s statement (see, e.g., Supreme Court Decision 2010Do12728, Jan. 27, 2011). However, the existence of the fact of injury and the causal relationship may be acknowledged to the extent that there is no reasonable doubt. As such, when there are circumstances to suspect objectivity and credibility of the injury diagnosis report, it shall be very careful caution in determining the probative value thereof. In particular, in a case where an injury diagnosis report is issued solely based on the victim’s subjective appeal that mainly has pain, the date and time of the diagnosis shall be close to the point and time of the occurrence of the injury, and there is no circumstance to doubt particularly credibility in the process of issuing the injury diagnosis report, whether the part and degree of the injury indicated in the injury diagnosis report coincide with the cause or circumstance of the injury alleged by the victim, whether the victim may have any new physical cause unrelated to the victim’s appeal of the injury, the motive and progress of the examination after the examination in question should be determined.

On the other hand, injury in the crime of bodily integrity or physiological function of a victim refers to the injury of a victim. In the case of an injury caused by an assault, it is extremely minor that the injury is ordinarily likely to occur during daily life without any assault, and it cannot be said that the injury constitutes an injury of a victim if it does not interfere with natural healing and physiological function without any need for treatment. Furthermore, whether the injury of the victim’s physical integrity or physiological function is not objectively and uniformly determined, but should be determined on the basis of the victim’s age, gender, physical and mental specific condition, such as physical and mental condition (see, e.g., Supreme Court Decisions 9Do4305, Feb. 25, 2000; 2005Do1039, May 26, 2005).

2. The facts charged of the instant case reveals that “The Defendant, at around 16:00 on November 27, 2013, at the first floor management office of the ○○ Office located in the Dong-gu, Busan around 16:0, the victim Nonindicted 1 (the victim Nonindicted 63 years of age) who was the tenant of the instant officetel 704 and the refund of deposit money, the victim was the fronter and the victim was kid, while the victim was kid, and the victim was kid, and the victim was kid by both hands, and the victim was kidd by the lower court’s kids, requiring two weeks of treatment by cutting down the clothes on the left side of the victim’s chest.” Accordingly, the lower court affirmed the first instance judgment convicting the Defendant of the crime of injury on the ground that it is reasonable to evaluate the victim’s injury caused by the Defendant’s act on the basis of the victim’s statement and diagnosis of injury.

3. However, according to the evidence duly admitted, the following circumstances are revealed.

① On June 24, 2014, seven months from the day on which the instant crime was committed, the victim filed a complaint with the Defendant on June 24, 2014. The first time, because there was no idea to file a complaint, the victim did not receive treatment only at the △△ Hospital and did not receive a medical certificate, and later stated that the medical certificate was issued at the latest in order to file a complaint. The victim appears to have received the medical certificate on June 19, 2014 immediately before

② However, the date of issuance of the injury diagnosis is indicated as of November 28, 2013, following the instant crime, and the head of the △△ Hospital asked for the fact-finding inquiry to the effect that “the victim was issued with the injury diagnosis certificate already issued on November 28, 2013, but the victim was not found.” However, the above explanation by the head of the △△ Hospital Hospital as to the date of issuance of the injury diagnosis is not unreasonable in light of the victim’s above statement.

③ The disease name of the victim stated in the death diagnosis report is deemed to require two-time treatment from the date of the award on the scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic s.).

④ Although the victim visited the △△△ Hospital after the time limit indicated in the facts charged in the instant case, and received medical treatment from the doctor Nonindicted 2, there was no particular treatment for the pains, such as physical therapy, in addition to the examination of literature and radiation photographing, and did not purchase the prescribed medicines, and there was no trace of visiting the hospital or having received medical treatment in relation to the lusium.

4. Examining the aforementioned circumstances in light of the legal principles as seen earlier, such as the process of issuing the instant medical certificate, the content and process of the medical examination, and the grounds for issuing the medical certificate stating a doctor, it is difficult to readily conclude that the victim suffered from the injury of the crypted salt by the Defendant’s act.

Nevertheless, the lower court found the Defendant guilty of the facts charged of this case on the grounds stated in its reasoning without properly examining the above points. In so doing, it erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal on this point is with merit.

Furthermore, since the facts charged in this case include the part of assault, even if the facts of assault and injury are not recognized as a result of the trial, a judgment of conviction shall be rendered, and if there is no right to institute a prosecution, a judgment of dismissing a public prosecution shall be rendered. However, according to the records, the victim expressed his intent not to prosecute the defendant's act before a district police officer dispatched to the scene immediately after the instant case. In cases where it is evaluated that such victim's intention not to prosecute was expressed in a clear and reliable manner (see Supreme Court Decision 2001Do1809, Jun. 15, 2001, etc.), it is impossible to again express his intent to punish after clearly expressing his intention not to prosecute in the crime of non-compliance with the intention (see Supreme Court Decision 93Do321, Feb. 25, 1994, etc.). Thus, there is no room to deem the prosecution against the defendant as invalid due to the violation of the provisions of the Act.

5. Therefore, without examining the remaining grounds of appeal, 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 by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)