[1] Whether the appellate court can reverse the judgment of the first instance court on the credibility of the statement made by the witness of the first instance court (negative in principle)

[2] The circumstances pointed out by the appellate court following the judgment of the first instance court, which was the victim's testimony of the first instance court, are mainly the circumstances pointed out in the first instance court, and the circumstances revealed as a result of additional examination of evidence in the appellate court, constitute special circumstances to deem that the first instance court's judgment on the credibility of testimony of the first instance court was clearly erroneous, in a case where it is merely a circumstance such as sending text messages after the crime (negative)

[3] Method of determining the probative value of the statement made by the victim of sexual assault, etc. / Whether the credibility of the statement made by the victim may be dismissed without permission on the ground that there are circumstances in which the victim’s attitude does not appear to be “the victim who must have seen such reaction underground” in the victim’s attitude after the crime (negative)

[1] Articles 275(1) and 308 of the Criminal Procedure Act / [2] Article 308 of the Criminal Procedure Act / [3] Article 308 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2008Do7917 Decided January 30, 2009, Supreme Court Decision 2010Do8227 Decided October 14, 2010 / [1] Supreme Court Decision 2006Do4994 Decided November 24, 2006 (Gong2007Sang, 96) Supreme Court Decision 2010Do15765 Decided June 30, 201, Supreme Court Decision 2017Do7871 Decided March 29, 2018 / [3] Supreme Court Decision 2018Do7709 Decided October 25, 2018 (Gong2018Ha, 22294), Supreme Court Decision 2008Do2036429 Decided August 26, 20205 (Gong200379Do205279 Decided August 29, 2018)

Defendant

Prosecutor

Law Firm Hahn Law Firm, Attorneys Kim Jong-moo et al.

Changwon District Court Decision 2018No1550 decided February 21, 2019

The judgment of the court below is reversed, and the case is remanded to Changwon District Court.

The grounds of appeal are examined.

1. Facts charged, judgment of the first instance court, and the reasoning of the judgment below

A. The summary of the facts charged of this case is as follows: (a) the Defendant is the convenience store employee of the convenience store development team and the victim is the convenience store; (b) the Defendant found the convenience store operated by the victim around April 24, 2017; (c) the victim discovered that he is working alone at that place and attempted to commit an indecent act against the victim; (d) on the same day, the victim shows the documents to the head of the victim while explaining his duties; (e) the victim was able to explain his duties; and (e) the victim was her head by his hand; (e) even though the victim expressed his intention of refusal by pushing the defendant while expressing his intention of refusal, the Defendant committed an indecent act by forcing the victim to take the face on the front of the above 16:35 of the same day; and (e) the victim took care of his face after leaving the victim, and then forced the victim to see his left hand by forcing the victim to satisfy with his own resistance and forcing the victim to sat.

B. The first instance court convicted the victim of the facts charged on the ground that the victim’s statement on the details of damage was specifically and consistent after examination of the victim’s witness, consistent with the CCTV image photographs, and it is difficult to deem that the victim was in preparation for divorce with his/her spouse at the time, even if it was difficult to be a motive to make a false report.

C. However, the lower court closed the argument without additional evidence examination (the prosecutor submitted the victim’s marital relation certificate and the victim’s written application for confirmation of the victim’s intention to divorce upon his/her request for the transmission of documents was submitted, but all the documents were not submitted as evidence), and rejected the credibility of the victim’s statement and the probative value of CCTV images in the first instance trial and acquitted the victim on the following grounds based on the evidence that

1) Although the victim shows the attitude of avoiding the Defendant’s physical contact in CCTV images, it appears that he/she was forced to contact against the victim’s will by avoiding any further contact to the extent possible. The aforementioned form does not appear to have been the attitude of the person who had committed an indecent act prior to the victim’s statement.

2) It is difficult to deem that there was so-called “A” in which the Defendant and the victim cannot actively refuse to commit an indecent act.

3) At the time of the Defendant’s physical contact, the victim seems to have been aware of the possibility of returning CCTV images immediately after the occurrence of the instant case, such as voluntarily stating that “Ama has been in vain” at the time of the Defendant’s physical contact, and confirming in advance the part favorable to oneself, and having been aware of the possibility of not making it an indecent act due to one’s own ruling.

4) The victim appears to have been suspected of being out of the spouse, and there is a possibility that he reported his physical contact with the Defendant as an indecent act by force in order to relieve his responsibility even during the process of divorce to his spouse.

5) On the day of the instant case, it is difficult to obtain the victim’s statement that the Defendant entered a convenience store office for the victim’s work without any explanation and forced access to CCTV perusal. Rather, the Defendant stated in detail matters that are difficult to care without direct experience as to the process of entering the above office.

6) The victim seems to have been divided into a large number of conversations between the Defendant and the victim, such as the Defendant’s personal knowledge of the victim and the Defendant’s frequent phone details.

2. Determination

However, the above judgment of the court below is hard to accept.

A. In light of the difference between the first instance court and the appellate court’s method of evaluating the credibility of the statement made by the witness of the first instance according to the spirit of the direct hearing principle adopted by the Criminal Procedure Act, the first instance court’s determination on the credibility of the statement made by the witness of the first instance is not to be reversed without permission on the ground that the first instance court’s determination on the credibility of the statement made by the witness of the first instance was clearly erroneous in light of the contents of the first instance judgment and the evidence duly examined by the first instance court, or there are exceptional cases where it is deemed that maintaining the first instance judgment on the credibility of the statement made by the witness of the first instance is remarkably unfair after considering the results of the first instance’s examination and the results of additional evidence examination conducted by the time of closing the argument of the appellate court, the appellate court should not reverse the first instance judgment on the ground that the first instance judgment on the credibility of the statement made by the witness of the first instance court is different from the appellate court’s determination (see Supreme Court Decisions 2006Do4994, Nov. 24, 2009; 2007Do1701.

The circumstances pointed out by the appellate court following the judgment of the first instance court, which was the credibility of the victim's testimony at the first instance court, mainly based on evidence duly adopted and examined by the first instance court. The circumstances revealed as a result of the additional examination of evidence at the lower court are not deemed to constitute "special circumstances" in cases where the circumstances, such as sending text messages after the crime, are merely a mere fact after the crime (see Supreme Court Decision 2008Do7917, supra). In addition, even if the circumstances pointed out by the appellate court following the judgment of the first instance court appear to be only some of the various circumstances already considered in the first instance court's determination of the credibility of the victim's testimony, the same applies to the case where there are no special circumstances that could be detailed due to the subsequent judgment of the first instance court unless there exists any special circumstances (see Supreme Court Decision 2010Do8227, supra).

B. Examining the above legal principles, it is difficult to readily conclude that the lower court’s determination of the first instance court on the credibility of the victim’s statement and the probative value of CCTV images, which correspond thereto, was clearly erroneous or considerably unreasonable solely on the grounds indicated by the lower court, constitutes exceptional cases.

First, while the statement of the victim is consistent, the statement of the defendant has been changed in the direction of emphasizing the unity of the opinion with the victim.

1) The victim reported to the police on the day of the instant case, made a statement of damage, and made a statement in a consistent manner with the testimony of the first instance court. The purport is as follows.

A) Even though prior to the date of the crime indicated in the facts charged, it was difficult for the victim to strongly respond to the Defendant, who is an employee of the headquarters, as the principal agent into a key part-on deposit. (B) At the time of committing the crime, the victim continued to contact the victim’s body, and it was difficult for the Defendant to resist the victim’s name by selling.

2) The Defendant’s statement was modified as follows.

A) As to the circumstances prior to the crime, the statement was made by the police investigation: (a) the victim was unilaterally satisfyed during the police investigation; (b) the prosecutor made the statement that the victim was satisfy in the investigation; and (c) the statement was made by the first instance court that the victim developed into the relationship where the victim did so several times and satisfys.

B) With respect to the crime described in the facts charged, in the police investigation, ① stated, “The flusium was caused by the flusence that the flusium was caused by the flusence of the flusium and the flusence of the flusence of the flusence of the flusium.” However, in the 10th statement, the flusium argued that the flusence of the flusium appears to be even known by the flusence of the flusium.” ③ The flusium of the flusium of the flusium stated, “The flusium was known to the flusence of the flusium and the flu

3) The circumstances cited in the lower court are generally the following: (a) the relationship prior to the crime and the credibility of the victim’s statement that is inconsistent with the Defendant’s aforementioned circumstances at the time of the crime; (b) the fact is insufficient to reverse the first instance court’s determination that affirmed the credibility of the victim’s statement; or (c) the circumstances pointed out in the investigation and the first instance court’s process were merely the circumstances that the first instance court had already considered in determining the credibility of the victim’s statement.

4) The circumstances of the lower court revealed that the credibility of the victim’s statement related to the instant facts charged are merely secondary circumstances, and there is also a situation in which it is difficult to obtain the Defendant’s statement about the process of entering the convenience store office operated by the victim and printing out the settlement statement.

5) In relation to the circumstances indicated in the lower judgment, it is difficult to readily conclude that the victim’s statement was not personal information about the victim’s personal information through dialogue with the victim on the ground that the Defendant asked the victim about his/her personal information, other than his/her duty, and responded to the personal information, as if the Defendant performed his/her duty of the convenience store establishment aptitude test. Moreover, on March 2017, it is difficult to readily conclude that the Defendant came to know of the victim’s personal information through dialogue with the victim. It is the same in that most text messages sent and received by the Defendant and the victim are related to the opening of convenience store business.

C. In addition, the lower court’s determination is difficult to accept for the following reasons.

1) The number of countermeasures against sexual assault victims is bound to vary depending on their gender, relationship with the perpetrator, and specific circumstances. Therefore, readily rejecting the probative value of the victim’s statement without sufficiently considering the special circumstances where the victim, such as sexual assault, is faced in individual and specific cases, is not a judgment of evidence in accordance with logical and empirical rules based on the concept of justice and equity (see Supreme Court Decision 2018Do7709, Oct. 25, 2018). The credibility of the victim’s statement cannot be arbitrarily rejected solely on the ground that there are circumstances in which the victim’s attitude does not appear to be “the victim who ought to be seen as such reaction” in the context of the crime (see Supreme Court Decisions 2020Do6965, Aug. 20, 202; 202Do8533, Sept. 3, 2020).

In light of the above legal principles, the above 1, 2, etc., as pointed out by the court below that the victim did not appear as the victim, and as seen above, the victim at the time of the instant case showed an attitude to avoid or refuse the victim's physical contact, and there is room to regard the above 1, 2, to the extent possible from the victim's standpoint, who was in a relationship difficult to resist due to his occupational situation, as a matter of course, to respond to the defendant's

2) Furthermore, the lower court deemed that there was a possibility that the victim made a false statement in order to relieve his/her responsibility from the circumstance of divorce after committing the crime. However, even according to the lower court’s recognition, the victim applied for confirmation of intention of divorce after 4 days from the crime and completed the divorce report prior to the prosecution after obtaining confirmation of intention of divorce in accordance with the relevant statutes, and the circumstance that the victim secured less responsibilities or more favorable status due to the instant report cannot be confirmed in the record.

D. Therefore, the court below should have carefully judged the credibility of the victim's statement through additional examination of evidence, not by rejecting the probative value of the evidence that the first instance court held on the basis of the victim's credibility on the ground of the circumstances or secondary circumstances that the first instance court had already taken account of the circumstances or the second instance court's determination on the credibility of the victim's statement, if there is doubt about the probative value of the evidence, such as the credibility judgment of the victim's statement or CCTV video (However, the court below pointed out that additional examination of the circumstances cited by the court below, such as the circumstance that the CCTV video containing the contents of the crime of this case was compiled short and submitted).

Nevertheless, without taking such measures, the court below rejected the credibility of the victim's statement and the probative value of the evidence held by the first instance court on the grounds of conviction, thereby violating the principle of court-oriented trials and the principle of direct examination, thereby violating the rules of experience and evidence concerning the determination of credibility of the statement. The prosecutor's ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Tae-tae (Presiding Justice)