[1] The probative value of indirect evidence in a criminal trial with severe statutory penalty

[2] The degree of proof to acknowledge liability for murder in a case of murder where a dead body is not discovered

[1] Article 308 of the Criminal Procedure Act / [2] Articles 307 and 308 of the Criminal Procedure Act

[1] Supreme Court Decision 99Do3273 delivered on October 22, 199 (Gong1999Ha, 2457) Supreme Court Decision 99Do1252 delivered on February 25, 200 (Gong2000Sang, 890) Supreme Court Decision 2003Do3885 Delivered on December 12, 2003, Supreme Court Decision 2004Do7028 Delivered on January 14, 2005

Defendant

Defendant

Attorney Han Young-sik

Daejeon High Court Decision 2007No53 decided Nov. 23, 2007

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

1. As to the intimidation and serious confinement among the facts charged against Nonindicted 1

According to the records, the court below is just in finding the defendant guilty of intimidation and confinement against the non-indicted 1, and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal.

2. As to the facts charged against Nonindicted 2

A. The possession of dangerous articles, confinement, and assault;

In light of the details of telephone conversations between the defendant and the non-indicted 3 and the defendant's telephone call method using only public telephone, etc., it is evident that the defendant was unable to prepare a detailed prior plan for the crime of kidnapping by the non-indicted 2 and the non-indicted 2 in contact with the non-indicted 3 from time to time by avoiding one month's exposure. In particular, the court below rejected the defendant's assertion that the defendant's testimony was highly likely to be used by the prosecutor's office in collusion with the non-indicted 2 on December 27, 2005 on the following grounds: on December 23:11, 205, the telephone conversations between the defendant and the non-indicted 3 and the non-indicted 2 in contact with the non-indicted 3 at the front of the case of the non-indicted 2's house collection and the defendant's non-indicted 3 in collusion with the non-indicted 2's witness's oral testimony at the scene where the defendant was not known at the scene.

In light of the records, the judgment of the court below on the defendant's access to the site of the case and the judgment on the confinement of non-indicted 2 based thereon is just and acceptable, and the judgment of the court below which found the non-indicted 3 guilty of carrying dangerous articles among the charges against non-indicted 2 on December 28, 2005, at the emergency room of the Chungcheongnamnam University Hospital, at around 03:40, the right after the fact that the non-indicted 3 was diagnosed as be in a knife with the left hand hand hand, and on December 28, 2005, at the private hospital around 08:50 on December 28, 2005, he was presumed to be be be be be be be be be be be be be be be a bee by the knife type, since it is clear that the body of the non-indicted 2 was using the knific weapon in the process of confinement.

In addition, the court below's decision that affirmed the first instance court's decision that found the defendant guilty of the assault against carrying dangerous goods on the ground that it is difficult to easily reject credibility of the non-indicted 3's statement that the defendant got a passenger car and got a passenger car in excess of the non-indicted 2 on the grounds as stated in its reasoning is acceptable in light of the records.

Therefore, the judgment of the court below which found the defendant guilty of the illegal confinement of dangerous articles and assault shall not be deemed to have violated the rule of experience, the rules of evidence, and the admissibility of evidence, as otherwise alleged in the ground of appeal.

B. Regarding murdering

(1) On December 28, 2005, the facts charged in this part of the facts charged reveal that the Defendant, around 02:31 on December 28, 2005, released Nonindicted 3 from a passenger car on the front day of Western High School located in the Dongdong-dong, Daejeon Seodong-gu, Daejeon, and subsequently, murdered the victim by moving Nonindicted 2 on his own car to the Dong-dong reservoir located in the Daejeon Seodong-dong, Seodong-dong, Seodong-gu, Daejeon.

As to this, the lower court, even if Nonindicted 2’s body was not found, based on the following circumstances: (a) Nonindicted 2’s usual life style and contact with his family members; (b) mobile phone calls before and after the occurrence of the case; (c) Nonindicted 2’s family members visited Nonindicted 2’s house and confirm himself; and (d) Nonindicted 2’s happiness before and after the instant case, such as whether Nonindicted 2 was salvable or dead; (b) it cannot be deemed that Nonindicted 2 had died only at the time of the past two years in an unknown state; and (c) according to Nonindicted 1 and Defendant’s statement regarding the motive for murder, Nonindicted 2 opposed to Nonindicted 1’s living; and (d) Nonindicted 1 was sent out to Japan; and (c) it is evident that there was a need for Nonindicted 2 to kill Nonindicted 2 at the time of committing the crime, and there was sufficient reason for Nonindicted 2 to have the Defendant prepared to murder the Defendant from time to time to time; and (d) it was sufficiently clear that Nonindicted 2 conspired with his other 2’s will.

In addition, the court below determined that the defendant's statement in the statement of the non-indicted 1 and the non-indicted 4 (AC) that the defendant arrestedd the non-indicted 2 under the aforementioned prior plan, the defendant's communication between the defendant and the non-indicted 3 was severeded, and the plan that the defendant was attempting to commit the crime of murder from the defendant, and that the defendant's statement in the statement of the non-indicted 1 and the non-indicted 4 (AC) that the defendant was attempting to commit the crime of murder from the defendant, although the location was within the police station, it is recognized in light of the circumstances of the statement, and even if the part of the statement regarding the method of killing the non-indicted 2 is somewhat abstract and vague, it is difficult to reject the credibility of the statement that the main part of the statement was the defendant's murdering the non-indicted 2, and it is sufficiently recognized that the defendant murdered the non-indicted 2 by the "non-indicted 2" following the crime of confinement.

However, the court below recognized the same criminal act as “in collusion with a third party (non-indicted 3, 5, etc.)” on the ground that it is difficult to accept the part of Non-Indicted 3’s statement concerning the circumstances after the abduction of Non-Indicted 2 that himself returned to the Defendant’s car house before Non-Indicted 2 died and did not participate in the commission of murder on the ground that it was difficult to accept as is. In addition, the court below recognized the same criminal act as “the date and time of the crime” in collusion with a third party, unlike the written indictment indicted for the reason that it is difficult to accept the part of Non-Indicted 2’s death. In addition, the court below recognized the partial change of the date and time of the crime [the date and time of the crime are limited to the period from 00:15 on December 28, 2005 to 02:30 on the same day as the criminal act of assault by carrying dangerous objects (which is between Seo-gu, Seo-gu, Gabag, and

(2) Even in the case of a crime with heavy statutory penalty such as murder, etc., the indirect evidence without direct evidence can be found, and even if the body of the victim is not discovered, the indirect evidence can be comprehensively examined in relation to the crime of murder (see, e.g., Supreme Court Decisions 9Do3273, Oct. 22, 199; 2004Do7028, Jan. 14, 2005). However, a careful judgment is required in relation to the crime of murder. In addition, in order to recognize the criminal liability against the defendant who denies the whole crime under a situation where the body is not discovered, the fact of death of the victim should be proven additionally and preemptively, and it should be proven to the extent that there is no reasonable doubt that such death of the victim was caused by the act of the defendant with the intent of murder.

First, as to whether Non-Indicted 2 died or not, the judgment of the court below recognized that Non-Indicted 2 died in light of all the circumstances, such as the living relationship of Non-Indicted 2 and the criminal administration before and after the instant case, etc., as cited by the court below, is acceptable in lieu of the judgment of the court below. Although the location of Non-Indicted 2 was registered on the cell phone temporarily used by Non-Indicted 2 twice on January 15, 2006 and May 6, 2006, the location of Non-Indicted 2 was registered in the base station in the Daejeon Metropolitan City, Seo-gu, Seogu, Daejeon Metropolitan City. However, considering the possibility of use by a third party and the possibility of computer error, it is difficult to suggest the possibility

그런데 이와 같이 공소외 2가 사망하였다고 하더라도 공소외 2의 시체가 발견되지 아니한 상황에서 위에서 본 바와 같이 이 부분 공소사실에 그 사망의 경위가 기재되어 있지 않음은 물론이고 공소외 2의 살해에 관한 피고인의 범행방법이나 공소외 2의 사망에 관여된 피고인의 구체적 행동이 전혀 나타나 있지 않으며, 이와 관련한 원심의 판시를 보더라도 원심은 공소외 3이 이 사건 감금 범행 직후 자신이 입고 있던 옷을 버렸으나 공소외 5의 진술 등에서 그 옷에 피 또는 얼룩이 묻어 있었음이 인정되고 이러한 흔적은 공소외 3이 입은 경미한 상처(깊이 1㎝, 길이 3㎝)와 그에 따른 소액의 추정 출혈량(1-2분 사이에 약 3㏄ 정도)에 비추어 공소외 2가 사망에 이르게 되면서 또는 치명상을 입은 데 따른 것이라고 보아야 한다고 하였으나, 기록에 의하면 수사과정에서 이 사건 당시 공소외 3이 입고 있던 옷이 확보되지 못하여 거기에 공소외 2의 혈흔이 묻어 있었는지 여부가 확인되지 않았고 옷의 상태나 그것을 버린 경위에 관한 공소외 5의 진술내용도 명확하지 아니하여 원심의 판시와 같은 추론이 반드시 정확하리라고 단정하기 어렵고, 나아가 그러한 결과를 발생시킨 원인행위가 원심의 판시에 전혀 나타나 있지 않다.

In addition, according to the records, as a result of the police's voluntary receipt of a passenger car used by the defendant at the time of this case from Nonindicted 6, the owner of the passenger car, which was used by the defendant at the time of this case, the defendant showed that there was a well-salvable trace of the inner wall part of the front left part of the body of the police, such as a knife, and that the ice was discovered by a string body on the back part of the knife and the blood was requested to the National Scientific Investigation Agency, but the blood was not detected (in relation to the head car found at the rear seat of the vehicle, but the gene type was not detected due to the defect of the mother cell). In light of the above fact that the knife type of the above vehicle was found (the knife of Nonindicted 6 was investigated by the police around March 27, 2006, and the above knife or the above knife type of the defendant's knife was found.

In addition, the statement by Nonindicted Party 1, which stated that the Defendant was guilty of committing the murder from the Defendant, also refers to Nonindicted Party 1’s statement that “When Nonindicted Party 2 attempted to communicate Nonindicted Party 2 before Nonindicted Party 2’s house, Nonindicted Party 2 told that Nonindicted Party 2 died of drinking once in the process of showing an unexpected response, such as the wheels for faceing Nonindicted Party 2’s face, etc., and coping with it rapidly.” Thus, it cannot be seen as a statement clearly recognizing that the Defendant committed the crime with the intent of murder and caused Nonindicted Party 2’s death, and as seen earlier, it cannot be compatible with the point of confinement and assault using a vehicle, which is the remainder of the charges against Nonindicted Party 2, which is the facts charged against Nonindicted Party 1 and Nonindicted Party 4, the part that the Defendant indicated the Non-Indicted Party 2 at the time of Nonindicted Party 1 and Nonindicted Party 4’s statement that he was guilty, it is difficult to view that the Defendant’s credibility of this case’s statement is more difficult.

In addition, although Non-Indicted 3's prosecutor's statement that the court below acknowledged as co-offender with regard to murder, the summary of Non-Indicted 3's prosecutor's statement was involved in confinement and kidnapping Non-Indicted 2, he did not participate in any more of the crimes committed on the car at that time, and he was alive for the victim at that time, and whether the defendant committed any of the crimes thereafter. Since such statement concerns the circumstances that Non-Indicted 2 was alive at the time when he escaped from the scene of Non-Indicted 2, it is difficult to recognize the value of Non-Indicted 2 as an indirect evidence directly related to the defendant's murder, and the court below did not recognize the credibility of the above statement. In addition, even if the process that Non-Indicted 3 acquired and possessed the keys of Non-Indicted 3's motor vehicle, as decided by the court below, it is difficult to derive the relationship with the crime of murder in this case solely on such circumstances.

Under the circumstances where the method of committing murder against Nonindicted 2 or the reason for death is not revealed, it is sufficient that the death of Nonindicted 2 was incurred in the process of assaulting to suppress or prevent escape (see, e.g., the judgment below 43), rather than by the act of commission based on the intent of murder by the Defendant or his accomplices (see, e.g., the judgment below 43). It is sufficient that the death of Nonindicted 2 might result in the process of assaulting Nonindicted 2’s resistance during confinement or to prevent escape (see, e.g., the judgment below 43). Even though the Defendant requested the degree of mere divorce, it is possible for accomplices to have died of Nonindicted 2 even though the Defendant requested the degree of mere divorce. In the circumstance where the decision-making of the Defendant was completely excluded, it may not be ruled out that there was a possibility that the final consequence of death would result from the crime

Ultimately, it is difficult to view that Nonindicted 2 died of Nonindicted 2 due to the act of the Defendant or his accomplice in the situation where Nonindicted 2’s body was not discovered, solely on the evidence related to the submission of the inspection attached to such evidence or the record, and other circumstances revealed at the time of the original trial, and it is difficult to view that Nonindicted 2 was proven to the extent that there is no reasonable doubt as to the death of Nonindicted 2. Thus, even if there is sufficient objective circumstance to recognize the motive for murder even before the instant case, and Nonindicted 2 was arrested through a prior plan taken place under the Defendant’s lead, and Nonindicted 2 was presumed to have died after the time and place of death, it is difficult to recognize the liability for the crime of murder of this case, in view of the situation where the Defendant or his accomplice, together with Nonindicted 2,

Nevertheless, the court below found the defendant to have killed the non-indicted 2 on the basis of the circumstances and reasoning stated in its holding and found the defendant guilty of the charge of murder. In so determining, the court below erred by misapprehending the legal principles on the probative value of indirect evidence in relation to the recognition of murder, or by violating the rules of evidence, and thereby affecting the conclusion of its judgment.

3. Conclusion

Therefore, the judgment of the court below cannot be maintained as it is. Since the court below rendered a single sentence on all the remaining convictions in concurrent crimes with this part and the former part of Article 37 of the Criminal Act, the judgment below is reversed in its entirety 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 Ahn Dai-hee (Presiding Justice)