2019No2699 Indecent Act by compulsion

A

Prosecutor

Bags (prosecutions) and two-wheels (public trials)

Law Firm Pyeongtaeksan

[Court of Second Instance]

Law Firm Geumyang

[Defendant-Appellee]

Seoul Central District Court Decision 2018 Height3905 Decided August 22, 2019

February 7, 2020

The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal;

G’s testimony of witness by indecent act by compulsion is natural and arbitrative and high credibility. Nevertheless, the judgment below acquitted the facts charged of this case. Thus, the lower court erred by misapprehending the facts.

2. Determination

A. The judgment of the court below

1) G’s statements are doubtful for the following reasons.

G made the first witness statement at the police around 15 March 2009, about 7 months after the E’s birth day, around 10th day after the date of March 14, 2009, and made the statement that the President of the National Assembly, who was a man of the first 50th century, engaged in an indecent act against the victim at the time of the second police statement. At the time of the second police statement, the indecent act crime was called I J, submitted the name of J, and made the statement about 40 second half and height about 168 meters before the fifth statement made on April 14, 2009. In light of the above, it is doubtful whether the victim was an indecent act in question (or 50th to 40th half of the first half of the 50th century, about 168m of the first half of the 168th of the 17th of the 37th of the 195th of the 37th of the 197th of the 37th of the son’s land category of G.

2) At the same time, G has considerable doubt as follows in the process of classifying the Defendant as an offender.

G stated that the president of the 50th newspaper company committed an indecent act on the basis of facts, not through his own memory, through reporters, etc., and that at the time when the first or fourth police statements were made, I representative J was aware that he was an indecent act, but at the time of the fifth or fourth police statements, he stated that the defendant was identified as an indecent act against the victim by reporting the face of J through video and glass presented by police officers at the time of the fifth statement, and that he was aware that the defendant, not the J, was aware that he committed an indecent act against the victim.

① However, G made a statement that the president of the first police station committed an indecent act against the victim at the time of the second police statement. At the time of the second police statement, G specified J as an indecent act by submitting the name of the police officer to the name of the first J by presenting 168cc. At the time of the second police officer’s statement that the 40th key was an indecent act against the victim. At the time of the second police statement, J as the representative of the media organization in the Republic of Korea, could easily seek photographs or videos of J, and it could have confirmed whether G himself was an indecent act. The police officer also provided G’s pictures and videos to G before entering the police station as the representative of the media company, and it could have easily known that the Defendant was an indecent act against the police officer at the time of the first interrogation, and it could not be seen that there was an indecent act against the police officer at the time of the first interrogation. ② At the time of the Defendant’s testimony by G as an indecent act against the police officer, G was not an indecent act against the police officer at the time of the first police officer.

3) Therefore, the facts charged cannot be deemed as having been proven without reasonable doubt, to the extent that the Defendant could be subject to criminal punishment, solely based on G statements without credibility.

B. The judgment of this Court

In addition to the evidence duly adopted and examined by the lower court, the lower court’s determination is deemed to be justifiable, and it is difficult to view the lower court’s determination as erroneous solely based on the fact-finding statement of the CO, a police investigation officer, and there was no error by misapprehending the facts as alleged by the prosecutor. Therefore, the Prosecutor’s allegation above is without merit.

On April 14, 2009, when G entered the fifth police statement, J at around 22:20. On the same day, at around 22:25, the police began to conduct an investigation into Alba, 23:30 on the same day, while G arrived at the investigation site at around 19:52, which was 2:28 minutes and 28 minutes before J, while the police started to conduct an investigation into Alba, 23:30 on the same day (Evidence Record 1:941 pages), while G arrived at the investigation site at around 19:52, which was 22 hours and 28 minutes before J, and the police did not accurately identify the person who committed an indecent act against the victim of G even after G was called a criminal at least 4 times. On the other hand, on April 15, 2009, the police conducted a maximum examination against G at around 21:40 on the same day, and on April 15, 2009, conducted an investigation into evidence of G (Evidence Evidence 19).3).

As above, in light of the circumstance where G was subject to the legal maximum face-to-face examination and the fact that the comparable person is significantly lacking in the criminal identification procedure at the time when it was designated as a criminal for the reason that it was unable to clearly identify the criminal before it arrives at the place of investigation, etc. As such, the police officer conducted the legal maximum face-to-face examination in a situation where G was proved by the Justice’s Albanea during the time when G was the legal maximum prosecutor and the fifth statement, and accordingly, it seems inappropriate to conduct the legal face-to-face examination. Accordingly, the fifth statement that G followed the previous statement and designated the criminal as a criminal by G as an offender is not inconsistent with the initial statement of G on the rise of the criminal offender and the Defendant’s appearance. Therefore, it seems that its credibility is low.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Transfer of judge;

Judges O Chang-gu

Judges fixed succession;