The case holding that it was proved that the defendant committed a crime by pretending to an insurance accident and destroying his own building;

In a case where there is no direct evidence of probative value that can be found guilty against the defendant, the case holding that there is evidence of criminal facts that the defendant committed an insurance accident, under the disguised consideration of the insurance risk, to resolve the economic difficulties of the defendant's own building in light of various indirect and circumstantial

[1] Article 164 of the Criminal Code, Article 308 of the Criminal Procedure Act

Defendant

Defendant

Han field Law Firm, Attorney Park Jae-sik

Daejeon District Court Decision 2001Gohap199 Decided November 23, 2001

Supreme Court Decision 2002Do1423 Delivered on July 26, 2002

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for four years.

179 days of detention before the pronouncement of the judgment below shall be included in the above sentence.

1. Summary of grounds for appeal;

The Defendant did not commit the instant crime.

2. Determination on the grounds for appeal

A. As to whether the instant fire is fire-prevention

First of all, in reviewing the evidence duly reviewed and adopted by the court below, the fire in this case is not a remote fire, but a fire in this case is not a fire investigation report of the National Scientific Investigation Agency of the 55 to 87 of the investigation record and the investigation report of the causes of the fire in the 88 to 107 pages of the investigation records, and the police report of the newly constructed path of the 42 to 46 pages of the investigation record, etc., which caused a fire in this case to spread out gas by moving 2 to the 1st floor of the above cafeteria, opening the valve, opening the valve, and breaking the valve. The fire in this case is not a fire in this case.

(b) consider the relationship of evidence;

Therefore, the only issue of this case is limited to whether the defendant committed the fire prevention of this case, and then, the evidence recorded in the record should be examined in relation thereto.

(i)each statement for stimulation, stimulation, and Kim Yong-mar: these statements are significant evidence, because they are third parties having no interest with the Defendant and witness who, at the time of stimulation, had been presumed to be a criminal at the time of stimulation.

(a)The statement for laver used (as of 190 to 198 of the Investigation Record, Nos. 758 to 762 of the court below's testimony): The laver Kim Yong used the scene of the fire on the way that the laver went back due to the absence of a customer who was sent to the laver on the same day. The laver used the laver on the window was first known of the light on the laver, the laver was confirmed to be light on the laver, and the laver was parked on the laver side of the restaurant, the laver was parked on the laver, and the 119th report was sent from the laver to the 119th report. The laver confirmed that the vehicle was a white laver, but the vehicle number or the driver's increase was not considered to be the driver's increase.

(나) 송재현, 최진영의 진술(송재현은 수사기록 제33쪽 내지 제37쪽, 제129쪽 내지 제134쪽, 제698쪽 내지 제702쪽, 원심 증언, 최진영은 수사기록 제38쪽 내지 제41쪽, 원심 증언)：이들은 친구 사이로 같은 친구인 지근길과 함께 '세븐나이'라는 호프집에서 술을 마시고 세명이 같이 송재현의 집으로 가기 위해 걸어가던 중 식당 건물에서 연기가 나는 것을 보고 쳐다보았던바, 범인이라고 추정되는 사람이 식당 안에서 달려나와 주차장으로 가더니 흰색 프린스 승용차를 타고 도주하는 것을 보았다. 범인의 인상착의에 관하여는 송재현은 40∼50대의 남자로 키는 170cm 정도, 작고 뚱뚱한 체격, 상의는 흰색 계통의 티셔츠, 하의는 어두운 색 계통의 바지를 입고 있었다고 진술하고, 최진영은 30대 전후반의 남자로 상의는 흰색 계통의 티셔츠, 하의는 검은색 계통의 바지를 입고 있었지만 그 이외의 것은 거리가 멀어서 자세히 보지 못하였다고 진술하였다. 차량에 관하여는 최진영은 흰색 프린스인 것은 맞지만 번호판은 보지 못하였다고 진술하고, 송재현은 흰색 프린스인 것이 맞고 자신이 번호판을 보려 하였으나 앞번호판은 차량의 전조등 불빛 때문에 못 보았고 뒷번호판의 번호가 "6"자로 시작하는 것을 보았다고 진술하였다(기록에 따르면 송재현의 시력이 좌 2.0, 우 1.5이기 때문에 최진영보다 더 잘 볼 수 있었을 듯 하다). 두 사람 모두 원심 법정에서 피고인이 그 당시 그들이 목격한 범인인지 여부에 관하여 확실히 알 수 없다고 진술하였다.

(다)판단：위 목격자들의 진술을 종합하면, 이 사건 방화를 저지른 범인이 당시 이들이 목격한 "차량번호가 6으로 시작되는 흰색 프린스를 운전하는 남자"라고 인정하는 데는 큰 어려움이 없어 보인다. 한편, 피고인은 이 사건 발생 당시 만 49세로 키는 160cm, 비교적 작고 뚱뚱한 체격이며 흰색 프린스 승용차를 운전하고 있었는바, 인상착의나 차량의 특징 등이 위 목격자들의 진술에 부합되는 점이 있다.

(2) The defendant's leakage or non-indicted 1 (the 27 through 32, the 297 through 334, the 538 through 562, the 564 through 568, the 740 through 757 pages), the non-indicted 2 (the 36 through 352 of the investigation records), the cafeteria employee, the cafeteria employee, the cafeteria, the cafeteria employee (the 160 to 18 of the investigation records, the 116 to 128, the 772 through 776 of the investigation records), the highest accommodation (the 219 to 231 of the investigation records), the names of the former (the 238 through 248 of the investigation records), the crude oil (the 236 through 26, and the 202 through 217 of the investigation records) can be combined in terms of the meaning of each statement.

(A) The fact that the operation of the above restaurant was extremely poor at the time of the occurrence of the instant fire: the fact that the above restaurant operated by the Defendant at the time of the instant fire was extremely poor due to the e-mail and the outbreak of the e-mail and the e-mail, and that some employees were in arrears with the payment of wages. As such, the Defendant’s economic situation was related to the dispute with the owner of the land mentioned above that the e-mail would have been under the circumstances where the building of the instant restaurant would be removed, and thus, it can be the circumstantial evidence explaining the motive of the instant crime if the Defendant assumed to be a criminal.

(B) The fact that the offender is well aware of the internal situation of the Amado restaurant: The fact that the offender is well aware of the internal situation of the Amado restaurant is that the offender would be well aware of the internal situation of the Amado National Science Investigation Agency before his statement and the appraisal result of the Imado. In other words, the cafeteria building of this case is normal, and the defendant was living in the second floor, and it was difficult to prevent the defendant from committing the crime without being able to do so. On the day of the instant case, the defendant was able to see that the defendant was locked in the GM on the day of the instant case, and that there was no possibility that the defendant would be out of the 207 GM, who was living in the 1st century, and that the defendant would not have been aware of the external circumstances of the instant case, such as the defendant's appearance on the day of the instant case, and that the defendant would not have been able to open to the 1st century on the day of the instant case.

(3) The statement of Yoon Jae-in (No. 481 to 486 of the Investigation Records, No. 764 to 768 of the Investigation Records): In full view of the aforementioned statements as a land owner’s representative, copies of the order to remove the building which was bound on the 254 pages of the Investigation Records, copies of the case records of violation of the Building Act against Nonindicted Party 1 which were bound on the 261 to 272 pages of the Investigation Records, copies of the preparatory documents attached on the 487 pages to 489 pages of the Investigation Records, etc., the Defendant and Nonindicted Party 1 leased the site where the instant building is located from the land owner potter, and built the above restaurant by investing their entire property in the said restaurant without permission of the above potter-ri, but the above potter-ri and dispute were created, and the above potter-ri and the defendant’s order to remove the building site could not be acknowledged as the owner of the building at the time of this case’s civil litigation.

(iv)The statement of the authorized pen (the investigative record Nos. 447 to 453, the number of pages 694 to 697, the testimony of the court below): The above authorized pen stated that there was a fact that the person operating the paint agency sold in five to five to five to five to five to the defendant before the fire occurred. In the early stage of this case, the employee stated that he did not use the width at the defendant's restaurant and that he was using five to five to five to five to three days prior to the fire occurred in the defendant's place of the restaurant, on the ground that the defendant was a criminal. However, after that, the defendant made a statement that he used it as fuel at the time of his own flap car to find the fuel value and supported the employee's statement by changing it, thereby making it impossible to play a significant role in judging whether the defendant is a criminal.

(5) Albacona of the Defendant: The fact that it was revealed that there was a difference between the fact and the fact that the Defendant asserts in the criminal trial, cannot be determined that the Defendant was guilty. However, in the case where the Defendant’s conviction or innocence should be determined based on indirect evidence or circumstantial evidence, such as the instant case, it can be deemed that the substantial role of the Defendant’s assertion is false or false in determining whether the Defendant’s assertion is true or not.

(A) Defendant’s statement (shortly consistent to the police, prosecutor’s office, the lower court, and the lower court’s trial): Around February 2, 2007, Non-Indicted 3, she tried to engage in lighting at the heading house operated by Non-Indicted 3, who is the preceding day of the incident, and she dices with Non-Indicted 3, Gambling sing, etc., such as Non-Indicted 3, Gambling singing, which is the one at which Non-Indicted 3 was silent). They first come back, and the Defendant was very roughly and consistently taking place at around 11:0, the Defendant entered the heading room, Non-Indicted 207, and then she sing off. After that, Non-Indicted 3 had a word to do so, the Defendant divided the above heading house from Non-Indicted 3 and Non-Indicted 3 into a new wall, and the content of the conversation between Non-Indicted 3 and Non-Indicted 4, which occurred before the conversation.

(B) Nonindicted 3’s statement (which was 429 through 435, 436 through 440, 441 through 446, 734 through 739, and the testimony of the court below): Nonindicted 3 made a statement that corresponds to the above Alba that the Defendant asserts as a woman who has maintained a pet relationship for more than one year. However, it is different from the Defendant’s statement that the Defendant had not taken separately at 11 p.m., one important part is that Nonindicted 3 entered the said c.m., and that it was hard to find out that the Defendant was able to know that it was an important part of his c.m.’s statement that, at 2 p.m., the Defendant had not come to the above c.m., and that he was able to know about the above c.m. and that he was able to c., and that he was able to know that he was able to know about the above c.m., the Defendant’s statement.

(C) The statement in the order of gambling (as of the date of the statement of reasons for appeal Nos. 454 to 458, 688 to 693): The above order of gambling is a woman who operates the above order, and the defendant has made a statement that is inconsistent with Nonindicted 3 as to his Alba. In other words, the above order of gambling took place first with the defendant, Nonindicted 3, etc. at the time of drinking, and it was impossible to enter until 12 p.m. at the night, and it was impossible to say that the defendant had no possibility of parking the vehicle on the following day by putting the vehicle on a parking lot. Furthermore, the defendant's statement that the above order of reasons for crypting the vehicle was parked at the time of the above time, but it was not possible to find out that there was no possibility of parking the vehicle by crypting it on the following day.

(6) On the other hand, if the defendant is not the offender, it would be reasonable to find the damage from the fire to the emergency room of a prior hospital where the defendant lost his entire property as a matter of course. Furthermore, in the case where it is obvious that the fire of a group is due to the fire of a group, as in the instant case, the defendant should have been interested in the investigation progress by the investigative agency and actively cooperate with the victim. However, according to the records, the defendant should have heard the speech that the defendant was fire in the restaurant building through a cell phone at least three times on the day of the instant case, but he did not immediately look at the scene and did not look at the emergency room where the non-indicted 3 and the non-indicted 1 was receiving medical treatment, and even if the defendant did not have any specific situation at the time, he could not easily find the fact that the non-indicted 1 might have been in the first place and did not have any specific situation at the scene of the fire at the investigation agency, and he could not find the fact that there was any specific situation of the fire at the next time.

(c) Conclusion

(i)In a false criminal trial, the proof of a crime must be based on evidence with sufficient probative value, to the extent that there is no reasonable doubt, and if there is no evidence to form such a degree of conviction, the interest of the defendant should be determined even if there is doubt of guilt against the defendant. However, such proof is not necessarily necessarily required to be formed by direct evidence, but can be based on indirect evidence consistent with logical and empirical rules, and even if indirect evidence does not have full probative value of the crime, if it is deemed that there is a comprehensive probative value that it does not exist solely if comprehensive consideration of all evidence is conducted in relation to the whole evidence, even if it is not possible to acknowledge the crime.

(2) We look at this case’s health stand, although there are no direct evidence of probative value that can be found guilty solely by the evidence examined above. However, the fire of this case, which is, is not simple fire extinguishing, but fire prevention that she committed, the offender is a male driving of a white light car that begins with 6 years old vehicle number, in light of the method of crime and the criminal’s happiness on the day of crime, the offender is an internal or outside person, and the defendant was faced with the internal situation inside the restaurant. The defendant was placed at the time of the operation of the restaurant and investment in the entire property, and the defendant did not appear to have been able to have been able to find out the fire of this case at the time of the defendant’s occurrence of a fire at the time of the accident, since the fire of this case was concluded at the time of the investigation agency as well as at the time of the occurrence of the fire of this case’s situation where the defendant continued to have been able to receive the insurance money of this case, as well as at the time of the occurrence of the fire of this case’s.

(3) Therefore, the defendant's appeal is without merit.

3. Ex officio determination

(a)However, according to the investigation report (the confirmation date) on the preparation of the pro rata Kim Jong-sung, which was submitted by the court of first instance ex officio, the defendant was sentenced to a fine of 500,000 won at the Daejeon District Court on June 21, 2001, and the above judgment became final and conclusive on the 29th of the same month. Each of the crimes of this case against the defendant in the judgment of this case is in the concurrent relationship between the crime of violation of the Punishment of Violences, etc. Act which became final and conclusive and the crime of this case in the latter part of Article 37 of the Criminal Code, the court below neglected it in applying the law. In this regard, the judgment of the court below cannot be maintained any further.

(b)To this end, the judgment of the court below shall be reversed in accordance with Article 364, paragraphs 2 and 6 of the Criminal Procedure Act, and the following judgment shall be rendered after the pleading:

Criminal facts

On June 21, 2001, the Defendant was sentenced to a fine of KRW 500,00 for a violation of the Punishment of Violences, etc. Act at the Daejeon District Court, and the above judgment became final and conclusive on the 29th of the same month. On around 1999, the Defendant leased the site owned by the potteries located in Daejeon Jung-gu, Daejeon, Daejeon, and operated the restaurant. On or around June 2000, when the above building was destroyed by fire, the Defendant was paid approximately KRW 200 million insurance money from the insurance company and continued to run the restaurant with the same trade name, but the Defendant’s 1st of the above building and the 6th of the above 200 square meters above the above site was to be removed from the said 1st of the insurance money and the 1st of the ground 200 square meters above the above 1st of the building without obtaining the consent of the above pottery and the 1st of the above 30th of the building site.

1. On March 24, 2001, at the above restaurant building around 01:54, the Defendant: (a) moved 2 domestic ELP gas lines in the back of the restaurant to the 1st floor of the restaurant; (b) moved 2 valves in the above restaurant; (c) released gas by opening the valve; and (d) sprinking the width on the above restaurant’s underground floor widths, the spackers, storage outside the restaurant and the open storage, etc.; and (c) made the Defendant’s children use both the above cafeteria’s and Nonindicted 2 and 5, who are his children, to the entire building of the above restaurant, and destroyed it by setting it into a spick tool.

2. On April 18 of the same year, at the Daejeon Jung-gu Daejeon District Office customer's license office, the Defendant, along with Nonindicted Party 1, attempted to receive 600 million won of the fire insurance money by submitting a claim for the insurance money to Kim Byung-kick, an employee in charge of the above customer's property compensation, and attempted to receive 600 million won of the fire insurance money. However, the Defendant did not receive the above insurance money from the victim company suspected of a fire cause, and did not commit an attempted crime.

Summary of Evidence

In addition to adding "Investigation Report (Confirmation of the fixed date) of the preparation of the Prosecutor's Assistant Kim Jong-hwan," it is as listed in the corresponding column of the original judgment.

Application of Statutes

1. Article applicable to criminal facts;

Articles 164(1), 352, 347(1), and 30 of the Criminal Act

1. Selection of punishment;

The current state building fire prevention crime shall be punished by imprisonment with prison labor, and imprisonment with prison labor for the crime of attempted fraud in the judgment.

1. Handling concurrent crimes;

(a) The latter part of Article 37 and Article 39 (1) of the Criminal Act (the punishment for each crime on the market shall be separately determined);

(b) The former part of Article 37, Articles 38 (1) and 50 of the Criminal Act. Article 50 (Aggravation of Concurrent Punishment for Crimes of Fire-Fighting and Fire-Fighting as in Judgment with No heavier Punishment)

1. Calculation of days of detention;

Article 57 of the Criminal Act

Judges Min Il-young (Presiding Judge)