2020Do5503(a) Murder [Name of Recognized Crime: Violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents]

g)

(b) Burial of automobiles;

A

Defendant and Prosecutor

Law Firm (LLC) Dongin

Attorney Park Yong-woo, Counsel for the plaintiff-appellant

Gwangju High Court Decision 2019No398 decided April 21, 2020

September 24, 2020

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. The court below reversed the judgment of the court of first instance which found the Defendant guilty on the ground that there is no evidence to prove a crime as to the primary facts of this case on the ground of its reasoning, such as the following: (a) it is difficult to recognize that the car of this case where the victim was on board without being sealed by the Defendant does not fall into the sea; and (b) it is difficult to understand the meaning of the method of the offense indicated in the primary facts of the offense; and (c) there is no evidence to deem that the Defendant only duplicating pecuniary gain and killed the victim.

B. The following circumstances revealed by the reasoning of the judgment below are the circumstance that the defendant intentionally killed the victim by falling down on the sea according to the slope of the breakwater of the arrival of the instant vehicle by means of the method, etc. In other words, the victim has cancelled three insurance contracts with the defendant's invitation before the two months of the instant case, and concluded five new insurance contracts with the victim himself/herself prior to the death of the victim, and the insurance money to be paid at the time of the death of the victim increased to KRW 370 million to KRW 3750 million in total to KRW 1.155 million in total, to KRW 1.25 million in total, among the above five insurance contracts, the death insurance money stipulated by the special agreement on the two insurance contracts of the arrival of the instant vehicle at the sea of this case is the maximum slope of the death amount that the company would have taken over at the time of the Defendant's death with the professional captain, and the change in the condition of the instant insurance contract between the beneficiaries of the instant case and the above five million won in total.

In addition, in the case of a crime for the purpose of receiving insurance proceeds paid at the time of the death of a victim, there is an economic incentive to enjoy the benefit of receiving a large amount of death insurance proceeds if the murder attempt is successful, and as long as the intention of the crime is not discovered, it is not lost even if the attempt failed to commit the crime. Therefore, if the crime was committed with intent to murder for the purpose of receiving insurance proceeds, there is no time limit or time for the victim to have an opportunity in the vicinity of the victim who has a special relationship with him/her without any particular time, and thus, if the result of the victim's death cannot be clearly expected at any time, it can be easily implemented by giving the opportunity to easily cause the victim's death due to an accident. In other words, it would be most cases where the crime is intended to be pretend to be an intentional death accident by selecting and implementing a method that can be seen as an interesting and contingent method in the specific method of crime. In this regard, it is reasonable that the court below’s selection of general and reasonable elements as one of the following factors in the facts charged is based on general and detailed reasons.

C. However, considering the above circumstances, the following facts and circumstances revealed by the reasoning of the lower judgment and the record seems to be difficult to exclude a reasonable doubt that the death of the victim may not be caused by the Defendant’s intentional crime.

① There is no direct evidence as to the fact that the Defendant pushed the instant vehicle along a slope as indicated in the primary facts charged, that is, there is no direct evidence as to the fact that there is no direct evidence. Moreover, by the on-site inspection by the lower court, there was a stop at the time when the vehicle stops at any point of the end of the breakwater, while the vehicle stops at any point of the breakwater without diving any power from the outside, it was revealed that the vehicle can fall into the sea only by the movement of internal passengers, etc., even though the vehicle stops at any point of the breakwater. However, it is difficult for the Defendant to accurately identify the location where the vehicle stops at any time at the time of leaving the breakwater.

Therefore, it cannot be inferred that the Defendant pushed the instant car solely on the ground that the instant car fells into the sea after the Defendant fells from the instant car without locking the bucks in a remote state with the speed of moving-in.

원심의 현장검증 결과와 증인 U의 진술에 의하면, 변속기를 중립 위치에 두고 사이드 브레이크를 잠그지 않더라도 일단 그 자리에 차량이 정지하였다가 그 후 내부 탑승자의 움직임 등으로 비로소 이동하기 시작하는 정차 위치를 미리 파악하는 것은 매우 어려워 보이고, 설령 그 위치를 파악해두었다고 하더라도 그믐날이던 이 사건 발생일 23:00경에 아무런 조명이 없는 위 방파제 끝 부분에서 이 사건 승용차를 후진하여 정확히 그 위치에 정차하는 일 역시 쉽지 않아 보인다. 나아가 이 사건 승용차가 경사로를 따라 굴러내려 가게 한다고 하더라도 당시 위 선착장 왼편에는 웅덩이가 있고 오른편에는 돌이 놓여 있어 이 사건 승용차를 바다로 추락시키려면 위 웅덩이와 돌 사이로 통과시켜야 했다는 것이므로 정차 위치뿐 아니라 차체의 방향 및 바퀴의 정렬방향까지 고려하여 정차하였어야 했을 것으로 보인다. 피고인이 피해자를 살해할 의도를 가지고 일부러 이 사건 승용차를 그와 같은 위치에 정차한 후에 자신만 하차하는 방법으로 피해자를 살해하는 데 필요한 여건을 인위적 · 의도적으로 조성하여 범행을 실행하는 것이 과연 현실적으로 가능한 일인지 의심스럽다.

② The Defendant consistently stated to the effect that, under the circumstance that the victim’s sexual relationship with the victim ought to be re-confisced at a night after he was interrupted, he was unable to place his clothes properly and was parked at the end of the breakwater in order to receive a fall-prevention rail and to ascertain the situation while driving the instant vehicle at the end of the breakwater. According to the results of the investigation, the following day of the instant case is used in a sexual relationship by wearing a male sexual flag within the victim’s body, and the apparatus used in a sexual relationship with the victim’s body remains within the victim’s body, and the risk of physical safety or the core depth was found in a shock rail installed at the end of the said breakwater. In addition, in order to change the vehicle in a state of parking (P) with the engine at the end of the breakwater, it is difficult for the Defendant to use the vehicle at the right stage before he was placed in the front of the instant vehicle, and it is difficult to use the vehicle at the speed of 10 months before he was placed in the front of the vehicle.

③ According to the Defendant’s solicitation, the victim selected two insurance contracts with AH and AI as much as possible, when the victim died by a special agreement added to each insurance policy. This is to set the proportion of the insurance proceeds paid as an insured event during the life of the insured and to the maximum extent possible, which differs from ordinary cases where the increase of the insurance proceeds paid as at the time of the death of the insured. However, the above two insurance contracts are concluded by terminating the previous insurance contract providing similar security and instead of the victim, and thus, the burden of the insurance premiums for the victim is considerably reduced compared to the previous insurance contract. Of which, the insurance premiums pursuant to the special agreement on death security appears to be less than 10%. The amount of the insurance premiums additionally borne due to the increase in the number of insurance contracts providing various guarantees seems to be minor, taking into account the value of the policyholder and how to determine the composition of the so-called survival security and collateral. At the same time, if the Defendant did not have any difference between the insurance premium to be paid by the victim and his/her family members prior to the increase in insurance contracts with the victim’s insurance policy and the maximum amount of 200 million injury.

④ The beneficiary of the above five insurance contracts concluded upon the Defendant’s solicitation was changed to the Defendant 10 days prior to the instant 10 days. However, the process of the change is not clearly revealed, and there was no clear circumstance to deem that the Defendant led the change or operated the victim. Rather, the Defendant stated to the effect that the beneficiary of the above five insurance contracts actively demanded the change of the beneficiary of the insurance contracts that he/she bought after the Defendant’s marriage report was completed, and that the Defendant responded to the change. However, in fact, the two beneficiaries of the above five insurance contracts were changed to the victim on the date when the beneficiary of the above five insurance contracts was changed to the Defendant, and the Defendant changed to the victim only two insurance contracts having known the existence of the victim among the insurance contracts, and the Defendant changed to the victim’s two insurance contracts, and the fact that the beneficiary of the two insurance contracts was changed to the victim to the BC on the date of the change to the victim to the Defendant’s living together with the Defendant’s pictures and pictures on the Defendant and the victim’s birth immediately after the Defendant and the victim changed to the Defendant.

If the defendant planned to kill the victim for the purpose of receiving insurance proceeds and caused the change of the beneficiary of the above five insurance contracts to himself/herself as stated in the facts charged, it is also hard to understand that the change of the beneficiary of some insurance contracts subscribed by the defendant to the victim and re-transfer the beneficiary to the defendant's 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 shes. If the change of the beneficiary was discovered before the crime, it may be difficult to give the defendant an opportunity to commit a crime due to the 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.

D. Therefore, the lower court’s judgment that acquitted the Defendant on the grounds that there was no proof of a crime regarding the primary facts charged is justifiable in accordance with the legal doctrine that “In a criminal trial, the recognition of a crime ought to be based on strict evidence with probative value, which leads to the judge to have no reasonable doubt.” If there are doubtful circumstances that the Defendant intentionally committed a crime, and if there is no doubt that the Defendant could not have committed a crime, and if it cannot be clearly ruled out that it would not constitute an intentional crime under the evidence relationship and experience law, it cannot be found the Defendant guilty (see Supreme Court Decision 2017Do1549, May 30, 2017). In so doing, contrary to the Prosecutor’s grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

E. Meanwhile, the prosecutor appealed against the entire judgment of the court below, but the guilty part does not include the grounds of objection in the petition of appeal or the appellate brief.

2. As to the Defendant’s ground of appeal

On the grounds indicated in its reasoning, the lower court convicted the Defendant of the instant conjunctive charges. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the establishment of a crime of violation of special

In addition, pursuant to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the punishment is too unreasonable cannot be

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hwan

Justices Park Sang-ok

Justices Ansan-chul et al.

Justices Noh Jeong-hee