The case reversing the judgment of the court below on the ground that the court below which found the defendant guilty of injury by robbery committed an error of mistake of facts due to violation of the rules of evidence

The case reversing the judgment of the court below which found the defendant guilty of injury by robbery on the ground of a mistake of facts against the rules of evidence, on the grounds that it is difficult to readily conclude that the defendant is a retail offender on the grounds that it is hard to conclude that the defendant was a retailer offender on the grounds that the defendant had committed a mistake of facts due to the violation of the rules of evidence, on the grounds that it was not seized by the defendant and the record of seizure or evidence of the present seizure of the damaged goods, etc. collected in the bus entrance, etc.

Article 308 of the Criminal Procedure Act, Article 337 of the Criminal Act

A

Defendant

Attorney B

Seoul High Court Decision 91No917 delivered on July 26, 1991

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal by the defendant and his defense counsel are also examined.

1. According to the reasoning of the judgment below, on September 28, 1990, the court below recognized the following facts: (a) on the bus stops in front of the Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-do, the defendant was boarding a city bus on the number omitted in front of the bus stops, and (b) after having access to the victim C, who is a passenger, cut down 302,000 won in cash from the inner machine, cut off 300,000 won in cash, and 300,000 won in check amount; and (b) on the same day, around 07:05, the above bus was stopped at the bus stops in front of the Ewing-gun, Chungcheongnam-gun, Chungcheongnam-do; (c) on the one hand, the victim discovered the fact that the victim was stolen from the damaged goods and got a retail storage machine, and caused the victim to escape from arresting the bus with the entrance of the bus, and (d) by selling it to the victim beyond the speed of the victim to remove the injury.

2. However, the defendant denies the above crime from the investigation stage to the court below's trial stage, and only tried to flee from the scene because of the victim's previous conviction of retail shop. Among those cited as evidence of guilt, the statement in the court of first instance and the protocol of examination of the defendant by the public prosecutor cannot be evidence to acknowledge the defendant's retail shop crime because the defendant denies the crime. Next, considering the testimony in the court of first instance, the defendant's testimony in the court of first instance, in the court of first instance, in the court of first instance, in the court of first instance, in the prosecutor's statement as to the above persons, and the prosecutor's statement as to the defendant's above, it is difficult to conclude that the defendant's above statement was made after the sound victim's escape and the defendant's attempt to flee, but it is hard to conclude that the above defendant's name and the above protocol of statement was made only by the defendant, who had no knowledge of the time to use the neighbor's name.

In addition, other damaged articles in the seizure protocol are collected from bus entrances rather than seized by the defendant, and the victim's face-to-face knife, which is the seized articles, can not be found in the record to have been suspected of possessing the knife used for the crime. Therefore, the present presence of the above seizure protocol or seized articles alone cannot be a evidence to support the defendant as a criminal.

The evidence to commit the crime should not only be the direct evidence of the crime, but also circumstantial evidence or circumstantial evidence. In the case of the defendant, there is a criminal record of retailing, but also there is no doubt that the defendant is not the criminal, considering that the defendant attempted to flee at the scene, the probative value of the conviction should bring about convictions to the extent that it excludes reasonable doubt as to whether the defendant is guilty. However, the macrosive evidence of the first instance judgment cannot be seen as evidence with sufficient probative value to commit the crime of the defendant.

3. Ultimately, the judgment of the court below is erroneous in finding facts in violation of the rules of evidence, and the arguments pointing this out are with merit, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-sung (Presiding Justice)