[1] Admissibility of evidence of a video tape made by a private person with a conversation with a person other than the defendant

[2] A case where the admissibility of a video tape recording the contents of counseling with the victims who are infants is recognized

[3] Criteria for determining whether an infant has a testimony ability

[4] The case recognizing the victim's ability to testify and its credibility at the time of the case

[1] A video tape recorded with a person other than the defendant who is not an investigation agency does not differ from documents that contain statements made by a person other than the defendant except the provisions of Articles 311 and 312 of the Criminal Procedure Act. Thus, if the defendant does not agree to the use of a video tape as evidence, it shall be a copy of the original without any artificial adaptation, such as editing in the duplication process, if the video tape is the original or copy of the original, and it shall be recognized that the contents of the recording are recorded as stated by the person who made the statement at a preparatory hearing or during a public trial in accordance with Article 313(1) of the Criminal Procedure Act. Second, it shall be recognized that the video tape recorded with the person who made the recording at a public hearing or during a public trial in accordance with Article 313(1) of the Criminal Procedure Act. Since the situation of the recording object and the attitude and conversation of the persons who made the recording, unlike the recording tape, it shall be presumed that the person who made the recording and the person who made the statement will be the person who made the recording.

[2] A case where the admissibility of a video tape recording the contents of counseling with the victims who are infants is recognized

[3] The witness's testimony ability is a mental ability that can describe the facts of his past experience in accordance with his memory. Thus, the existence of the witness's testimony ability is not merely based on his age, but also on the basis of his intellectual level, it should be individually and specifically determined according to his own intellectual level, as well as the attitude and contents of his behavior, and it should be sufficiently considered whether the past facts of his experience belong to the range that can be changed by his understanding, judgment, etc.

[4] The case holding that the victim's ability to testify and the credibility of the statement shall be recognized as the victim's ability to testify and its credibility at the time of the case 4 years and 6 months, and 3 years and 7 months in full.

[1] Article 313(1) of the Criminal Procedure Act / [2] Article 313(1) of the Criminal Procedure Act / [3] Articles 146 and 307 of the Criminal Procedure Act / [4] Articles 146 and 307 of the Criminal Procedure Act

[1] Supreme Court Decision 96Do2417 delivered on March 28, 1997 (Gong1997Sang, 1291), Supreme Court Decision 98Do3169 delivered on March 9, 199 (Gong199Sang, 697) / [3] Supreme Court Decision 91Do579 delivered on May 10, 1991 (Gong1991, 1680), Supreme Court Decision 99Do3786 delivered on November 26, 199 (Gong2000Sang, 112) (Gong201Ha, 2024)

Defendant

Defendant

Law Firm Hannuri, Attorney Kim Sang-won

Seoul High Court Decision 2003No3415 delivered on May 11, 2004

The appeal is dismissed. 110 days out of the number of detention days after the appeal shall be included in the original sentence.

1. A video tape recording recording with a person other than the defendant who is not an investigative agency does not differ from documents that contain statements made by a person other than the defendant except the provisions of Articles 311 and 312 of the Criminal Procedure Act. Thus, unless the defendant consents to the use of a video tape as evidence, it shall be a copy of the original without artificial opening, such as editing in the duplication process, if the video tape is the original or duplicate of the original, and if the video tape is the copy, it shall be recognized that the contents of the recording are recorded as stated by the person who made the statement at a preparatory hearing or during a public trial in accordance with Article 313(1) of the Criminal Procedure Act (see Supreme Court Decision 98Do3169, Mar. 9, 199); if the situation of the person who made a video tape recording and conversations are recorded, and if the same person makes a statement in the form of a video tape recording and the contents of the recording are confirmed, unlike the recording tape, it shall be deemed that the person who made the statement in the form of the recording is an artificial recording.

According to the records, the first instance court's inspection report on the video tapes of this case is the same as the contents of the statement made by the victims and so evidence is the contents of the statement made by the victims. Thus, in order to take the contents of the statement made by the victims into evidence, the original video tapes of this case which are submitted to the first instance court shall meet the requirements prescribed in the above legal principles. However, the original video tapes of this case are reproduced at the inspection date, but the amount of the recording recorded at the first instance court's court's meeting is only one hour per victim's attendance at the inspection date, and it is not different from the contents of the interview made by the contributors, and there is no difference between the victims and the maximum text." Since the defendant's defense counsel also stated that there is no objection against the production process of the video tapes, it is recognized that they are copies of the original video tapes without any artificial writing such as editing, which are recorded at the inspection date, and it is recognized that the contents of the statement made by the victim are the same as the contents of the statement made by the first instance court's statement.

In the same purport, the decision of the court below that made the video tapes of this case as evidence of guilt is justified, and there is no error of law by misapprehending the legal principles as to the admissibility of the video tapes.

The Supreme Court precedents cited in the grounds of appeal by the defendant are inappropriate to invoke the case differently from this case.

2. The witness's testimony ability is a mental ability that can describe the facts of his past experience in accordance with his memory. As such, the testimony ability of the infant is not merely based on the age of the person stating the opinion, but it should be determined individually and specifically according to his intellectual level, as well as the attitudes and contents of his behavior, etc., and it should be determined by considering sufficiently whether the past facts of his experience belong to the range that can be changed by his understanding, judgment, etc. (see Supreme Court Decision 9Do3786 delivered on November 26, 199, etc.).

Examining the records in light of the above legal principles, it is relatively simple that the victim 1 left four years and six months at the time of the recording of the case and the video tape, and that the victim 2 experienced the victim 3 years and seven months, and that the defendant 's panty of the victims and the victim her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her..

In the same purport, the court below's decision that found the victims' statements based on the materials to acknowledge the facts of the crime of this case is just and acceptable, and there is no error of law by misunderstanding facts against the rules of evidence, or by misapprehending the legal principles as to the credibility of the statements of young children, which are unlawful or not examined.

3. The court below acknowledged facts based on the evidence of the employment, and found that the defendant's indecent act committed by the defendant in light of the victim's upper condition, degree, diagnosis details, etc., the victim 1 injured the victim's scarcity and the victim 2 injured the victim's sexual intercourse. In light of the records, the fact-finding and decision of the court below is proper, and there are no errors in the misapprehension of the rules of evidence or the lack of deliberation.

4. Therefore, the appeal shall be dismissed, and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-chul (Presiding Justice)