2014No369 Indecent Act by compulsion

Korea Electric Power Corporation (1960s)

Defendant

Escopic (prosecution) and scopic (public trial)

Attorney Kang Jin-hun, Attorney Jin-hun

Jeju District Court Decision 2013Ra1480 Decided July 11, 2014

April 30, 2015

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

The Defendant did not commit an indecent act against the victim. However, the lower court recognized that the Defendant committed an indecent act against the victim on the ground of the victim’s statement that is not consistent or inconsistent with objective evidence, such as CCTV images. In so doing, the lower court erred by misapprehending the legal doctrine.

2. Determination

A. The probative value of evidence is left to a judge’s free judgment, but such judgment must be consistent with logical and empirical rules, and the degree of the formation of conviction to be found guilty in a criminal trial should not be a reasonable doubt. However, this does not require any reasonable doubt to the extent that it excludes all possible doubts, and rejection of evidence which is recognized as having probative value is not permissible beyond the bounds of the principle of free evaluation of evidence. In addition, the term “reasonable doubt” refers to a reasonable doubt as to the probability of a fact that is inconsistent with the facts that cannot be found in accordance with logical and empirical rules, rather than all questions and correspondences, and it refers to a reasonable doubt as to the probability of a fact that is not compatible with the facts that are found in accordance with the logical and empirical rules. As such, a doubt based on conceptual or abstract possibility should be included in a rational doubt (see, e.g., Supreme Court Decision 2004Do362, Apr. 15, 2005).

B. Direct evidence of the facts of the instant crime is the victim’s statement. Therefore, we examine whether there is any reasonable doubt in finding the Defendant guilty solely with the victim’s statement in light of the grounds alleged by the Defendant.

1) 먼저 피고인은, 피해자의 사건 이후의 행위를 강제추행을 당한 사람의 그것으로 볼 수 없다는 것을 피해자 진술의 신빙성을 감소시키는 주된 이유로 들고 있다. 즉, 피해자가 (a) 원심 판시 제1항의 강제추행을 당한 후 즉시 피고인에게 이의하거나 회식. 자리를 떠나는 등 의사표시를 하지 아니하였고, (b) 오히려 회식을 마칠 때 적극적으로 피고인의 손과 피해자의 손을 깍지 끼우고 피고인을 끌어안았으며, (c) 원심 판시 제2항의 강제추행을 당한 후 집에 도착해서 피고인에게 전화를 걸고, 피고인이 전화를 받지 아니하자 ^^'이라는 이모티콘이 포함된 호의적인 문자메시지를 보냈으며, (d) 이 사건 다음날 이후 계획했던 해외여행을 떠나는 등 평소와 다름없이 생활했다는 것이다.

However, according to the evidence duly adopted and examined by the court below and the court below, the defendant was the highest position of the victim's workplace, and there was no personal contact between the defendant and the victim prior to this case. Under the relation between the defendant and the victim, at the time of indecent act under paragraph (1) of the court below's decision, the victim was at the time of indecent act under paragraph (1) of the court below's decision, and the victim was at the time of the indecent act under paragraph (1) of the court below's decision, the victim was at the time of the indecent act outside the restaurant to discuss the defendant, the ordinary person would not have any preparation for such situation, and even if the behavior at the time of the victim seems to be somewhat unreasonable, such behavior should be considered as a whole in consideration of other additional circumstances and statements. In light of the above, the credibility of the victim's statement that the indecent act was committed by force, and the relation between the defendant and the workplace after the indecent act under paragraph (1) of the court below's decision, it is acceptable to accept the above situation.

나아가 피해자가 2013. 5. 2. 22:49경 피고인에게 전화를 걸었고, 22:50경 피고인에게 "소장님 집에 도착^^"이라는 내용의 카카오톡 메시지를 보낸 사실은 인정되나, 그 직전 박○○과 회식자리에서의 피고인의 행위가 성희롱에 해당하는 것이 아닌지에 관한 전화통화를 하였고, 22:48경 박○○으로부터 '피고인이 집에 들어갔으니 피고인에게 잘 들어갔다고 전화를 한 통 하는 것이 상황을 정리하는 데 좋을 것 같다'라는 내용의 메시지를 받은 점을 고려할 때, 위 (c)항 기재 사정 또한 피해자 진술의 신빙성을 탄핵할 만한 사정이 되지 아니한다. 또한 위 (d)항에 관한 피고인의 주장은 단순한 관념적인 의심에 불과한 것으로 보인다.

On the other hand, ① The victim moved to a restaurant to approximately 50 meters away from the restaurant without properly doing so with the Defendant and Park○○○, and returned home to the restaurant. ② The above message can be viewed as being a case different from that of the Defendant during the meeting, in light of the content of the above message sent to the victim after opening a meeting by Park○ who was present at the above ceremony, and then sent it to the victim. Park○○ also stated in the court of the lower court that the victim left the room without personnel, and the cab was above the victim stated. ③ On the same day: 23:36 of the day when the victim returned home, it was difficult for the victim to cancel his visit because it was good for his relative who was going to visit the restaurant, and the victim did not appear to have been aware of the credibility of the Defendant’s sexual harassment, and the victim did not appear to have actively expressed the victim’s sexual intercourse to the surrounding children, ④ The victim appears to have been sexually expressed by the Defendant, and the victim did not appear to have been sexually expressed by the Defendant.

2) Next, the Defendant asserts that there is no credibility in the victim’s statement since it is not consistent with the victim’s argument regarding the situation before and after the instant crime.

According to the records of the victim's statement dated May 3, 2013 (hereinafter "the first statement"), the victim's copy of the victim's statement (hereinafter "the second statement") and the victim's second statement on May 14, 2013 (hereinafter "the victim's second statement") stated that ① concerning the situation immediately after indecent act by compulsion in paragraph (1) of the judgment of the court below, the victim's first statement refers to "the victim's first statement", and the defendant's ppuri was taken. However, the second statement stated that the defendant was spawnd and spad down without the victim's statement, ② the victim was spad down on the way back to the above restaurant, and that the victim was spad down, and there was no such part of CCTV in the video image of the above restaurant, ③ there was no objective statement that "if the victim changed or was aware of the victim's second statement" from the victim's second statement to the second statement.

However, in the case of indecent act by compulsion under paragraph (1) of the judgment of the court below, the victim's statement on the indecent act itself is consistent and specific from May 3, 2013, the following day of the case, and even in the case of indecent act under paragraph (2) of the judgment of the court below, the defendant's statement on the important form of indecent act that the defendant had contacted the victim's right chest with the victim's hand on his hand and called "the same person" is consistent from May 3, 2013. The remainder of the defendant's assertion is consistent, most of the indecent act itself, rather than the indecent act itself, and most of the contents of the defendant's assertion were in a meeting place. Considering that at the time of the case, the victim dices alcohol exceeding the usual amount and was under the influence of alcohol to the extent that it might occur during the drinking job, the above change in the contents of the statement seems not to be prejudicial to the credibility of victim

3) Next, the Defendant asserts that the victim’s statement does not coincide with the circumstances indicated in other objective evidence. As such, whether it is such is or not.

First of all, as to the facts of indecent act by compulsion under Paragraph (1) of the judgment of the court below, the Defendant alleged that there was no mentioning the above facts in the statement of Park 00. However, even if the Defendant’s statement itself was made, Park ○ at the time did not enter a restaurant by the Defendant’s words that he would enter the restaurant first. Therefore, it seems reasonable that Park ○○ was unable to make a statement on the above facts.

Next, as to the facts of indecent act by compulsion in light of the judgment below, the defendant's assertion appears to have not committed indecent act by force on the CCTV images in the above restaurant. However, considering the evidence No. 3 submitted by the defendant, the part between 22:28:36 and 22:28:41 on May 2, 2013, and 22:2:2:28:28:28:36 on May 2, 2013 to 22:28:41 on the same day, it is possible to confirm the fact that the defendant was in close distance between 22:53 to 22:57 on the same day and the victim's accurate action or attitude cannot be found (the defendant asserted that the defendant did not commit indecent act on the victim by expressing the above image in writing as evidence No. 2, but it is difficult to determine whether the above evidence No. 2 is consistent with the contents of the evidence No. 3.

As above, the testimony, CCTV video image, etc. of the witness at Park ○○○○ does not reach the extent that the defendant's statement is more reliable than the victim's statement, and it does not reach the degree that the credibility of the victim's statement is doubtful.

C. Ultimately, according to the evidence duly adopted and examined by the court below and the court below, the defendant can be found to have committed an indecent act against the victim as stated in the judgment below, and thus, the defendant's assertion of mistake of facts

3. Conclusion

Therefore, the defendant'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.

The judge of the presiding judge shall be assistant

Judges Yellow U.S.

Judges Kim Gon-han