Degree of probative value of evidence for conviction

The conviction in a criminal trial should be based on strict evidence with probative value, which leads to a judge to have no reasonable doubt, and if there is no such evidence, even if there is no doubt about the defendant's guilt, it is the principle of criminal law that there is no other reason to determine it as the interest of the defendant.

Article 307 of the Criminal Procedure Act

Supreme Court Decision 86Do106 Decided April 8, 1986, 86Do1080 Decided August 19, 1986, Supreme Court Decision 86Do1570 Decided October 28, 1986

Defendant

Defendant

Attorneys Kim Jong-sik et al.

Seoul High Court Decision 86No2477 delivered on November 15, 1986

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

The defendant's defense counsel's grounds of appeal are also examined.

1. Summary of facts and evidence admitted by the court below;

A. According to the reasoning of the judgment below, the court below acknowledged the following facts: (a) comprehensively based on the evidence at the time of the judgment of the court of first instance, which is part of the defendant's statement and quoted evidence in the court of the court of the court below, the defendant 2.5 tons of a dump truck operated by the non-indicted 1 on November 8, 1985, carrying the non-indicted 1 and the non-indicted 1 and the non-indicted 1 and the non-indicted 1 and the dump truck on the road, which is the north-gu, Incheon, North-gu Seoul Metropolitan City, which is the dump dong-dong Seoul, operated from the 1st trial to the Seoul, the first intersection of the above vehicle was received as the left-hand side of the above vehicle, and cut off to 3.5 meters above the right-hand side of the bridge, destroyed the vehicle as stated in the judgment, destroyed the vehicle, and caused the victim's hump to the right-hand side of the victim, and took necessary measures for rescue.

B. According to the reasoning of the judgment of the court of first instance, the evidence admitted by the court below as follows: (1) The witness of the court of first instance, witness of the court of first instance, witness of the court of first instance, witness class, kymology, kymology, kymology, Non-Indicted 1, Kim Won-ho, Non-Indicted 2, Lee Jong-young, Lee Jong-young, Kim Young-young's statement in the first instance court of first instance; (3) the defendant and the non-indicted 1, 5, kym order, kym order, kymology of the protocol of examination of Kim Jong-sung as to the above facts constituting the crime (hereinafter above investigation records) and the statement in the first instance court of first instance as to each of the protocol of examination of the court of first instance (hereinafter above investigation records); (5) the preparation of each of the protocol of examination of the prosecutor's or the non-indicted 1, 2, 198; and (1) the preparation of each of the written statement of examination paper attached (16).

C. However, according to the records, the above evidence revealed that the above vehicle was removed from the above time and place, and that the above vehicle was killed in the above accident, and that the defendant and the non-indicted 1 suffered from the above accident, but it is objectively clear that the police officer after the accident of this case regarded the suspect of the crime as non-indicted 1 and became aware of the violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents (section 4 of the Investigation Records) after the commencement of the investigation into the crime of this case, but the non-indicted 1 was not under investigation into the crime of this case. The proviso that the defendant driven the above vehicle at the time of the accident was provided to the police at the time of the accident and it was hard to view the defendant as being aware of the above facts of the crime of this case's violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and it was also difficult to view the defendant's own awareness of the crime of this case as well as the defendant's head of the police office after the accident of this case.

2. Therefore, examining other evidences except the above evidence in light of the records, the court below should first examine the facts of the crime committed in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, first, the evidence that the defendant was aware of the fact that he was driving after the occurrence of the accident, second, the evidence that the location of Non-Indicted 1 on the vehicle that was in front of the occurrence of the accident in this case was a chief, not a driving seat, and third, the evidence that the above accident occurred far from the driving seat when the collisions on the road side, and that the defendant could have easily escape, fourth, the evidence that Non-Indicted 1 suffered an injury on the right side body, fifth, the defendant's main evidence that he was found guilty of the fact that he left the scene without taking relief or reporting on the passenger after the occurrence of the accident, and fifth, the above evidence was divided into the items and examined in order.

(1) As to the evidence that the Defendant was aware that he had driven the vehicle after the occurrence of the accident;

A. According to the police of Kim Won-ho, the prosecution and the court of first instance (No. 40, No. 395 of the investigation record, No. 402 of the trial record), one himself made a statement with the defendant and the non-indicted 1, who is a relative with the defendant and the non-indicted 2, etc. on December 1985. At the time, the non-indicted 2 made a false statement to the defendant on his own undermining the self-feit operation. (In the middle omission.......................................) that the defendant was wrong, but it seems that the non-indicted 2 made a false statement to the prosecutor's office of 7th of April 7, 1986, and made a false statement to the non-indicted 1, who is the defendant's feit and the non-indicted 1, who will not have been able to do so even if the defendant feit.

B. Furthermore, according to Non-Indicted 1’s police statement (Investigation Record 53), it is acknowledged that the defendant was on December 3, 1985 on the day when the defendant met with Non-Indicted 1, 2, Kim Won-ho, etc. In accordance with the first instance trial testimony (Court records 1050), Non-Indicted 2, who was a punishment of Non-Indicted 1, was found to have suffered the bereaved family member of the Cho Jong-young, who died in the accident of this case after this frame, and caused the death of Non-Indicted 1, who was on December 5, 1985. Thus, it was excessive that Non-Indicted 2 would have caused the suicide of Non-Indicted 1, 1985. If Non-Indicted 2 was aware that the person driving the accident vehicle from the defendant on December 3, 1985 was not a non-indicted 1, but the defendant was the non-indicted 1, who was on December 5, 1985, it should not be deemed that he driven the above 1).

C. On the other hand, according to the police officer, prosecutor's office, and first instance court's statement (Investigation records 64, 413, trial records 148, 464) of Kim Jong-chul and Kim Jong-chul stated consistently that the defendant and his relative with the non-indicted 1 were faced with the Dong at the office of the non-indicted 1 on November 17, 1985 after the accident of this case. In that case, the non-indicted 1 stated consistently that "if he was driven by her, he was driven by her, after her after her back," Non-indicted 1 was dissipatedd with his prosecutor's statement (Court records 217, 858) at the time of the accident, it was recognized that the non-indicted 1 was a mental condition from around November 12, 1985, which was 40,0000 won after her accident, and that it was a mental condition at least about 13,1985.15.

D. In light of the above circumstances, Nonindicted 1’s sentence, which was the punishment of Nonindicted 1, who operated the instant vehicle from Nonindicted 1 or Kim Won at the time of the accident, is premised on the fact that the person was not Nonindicted 1 but the Defendant, and on the premise that he was the Defendant, the Nonindicted 2’s statement that the Defendant told the Defendant to the effect that he was the person who was the driver of the vehicle involved in the accident during the conversation with

E. As above, there are many questions about the credibility or truth of the evidence that the defendant was waiting to drive the vehicle, and on the other hand, there are many evidences that lead to doubts as to whether the person driving the vehicle is not Nonindicted Party 1.

(2) As to the location of Nonindicted Party 1 in the previous vehicle:

A. According to the police officer of the patrol vessel, the prosecutor's office, and the court of first instance (the investigation record 298, 383, the trial record 364, the investigation record), the police officer of the last time, the prosecutor's office, and the court of first instance (the investigation record 43,141, 390, the trial record 91, 373), the police officer of well-known clothes, the prosecutor's office, and the court of first instance (the investigation record 47, 39, the trial record 819, 389, the trial record 819, and 389) of the patrol vessel, who had been present at the scene of the accident and was towed by the towing vehicle as the driver of the towing vehicle. They were suspected of being dispatched to the scene of the accident, not the first driver of the vehicle at the time of the accident but the first driver of the vehicle at the time of the accident.

B. However, first of all, the fact that only the above position is left as to whether a driver is a driver is not stopped as it is in the progress of the instant vehicle, but rather is a wife who disregards the situation where a full upper part of the instant vehicle was cut down on the road and then changed.

As shown in the first instance examination protocol (the trial record 515 et al.), the accident scene is made of the rash, sound, and stairs on the side of the road, and the vehicle involved in the accident is under the rash, and the body was faced with a dumen retaining wall and stairs, etc., and the body was faced with several shocks in the body of the vehicle, and it is obvious that the vehicle was damaged by the dumen, retaining wall, and stairs, etc. of the dunes and the body was faced with several shocks in the body of the vehicle. As such, insofar as the body was cut off while the vehicle was cut off and the vehicle was faced with several parts of the vehicle, it would be presumed that it would be more likely that it would remain in the form of experience and experience, as there is no conflict, and thus, it would be presumed that it would be difficult to say that the person aboard the vehicle of this case would not wear a safety bell.

In addition, it is recognized that the driver's seat was seriously damaged by the shock that the driver's seat was cut to the left side of the driver's seat, and even when the driver's seat was cut to the front, the first knife was cut to the lower part than the first knife's seat (a photograph of 249 days in investigation records, of 156, 325 days in trial records, and a statement of knife Kim Jong-young). According to the records, Nonindicted Party 1 appeared to have a body-friendly to get out of the front knife in the front knife's seat. In this case, it is too reasonable to see that the first knife his body out of the front knife's body, which might have been broken to the first knife's body, and that the first knife's body was 5 days in the second knife's first knife of the first k's body.

C. In addition, according to the records, it can be seen that the above statement itself was very inaccurate that the position of Non-Indicted 1 was the chief step after the accident. In other words, although Non-Indicted 1 was in the chief step at the time of the initial police and investigation by the prosecution, the well-known clothes and the recent line were put in the middle side (i.e., the first page) at the time of the investigation by the prosecution (i.e., the court records 834, 917) and the first instance court in the first instance court (i.e., the court records 834, 917), it can be seen that there was a difference in the first instance court records, but there was a statement that the first statement was in the chief of the (i.e., the court records 367).

In addition, the person who directly drawn the body of Nonindicted Party 1 in the vehicle is the grandchildren of Nonindicted Party 1, who is not the chief of the steering force, but when the body was laid out from the middle part of the seat of Nonindicted Party 1, the body of Nonindicted Party 1 stated that Nonindicted Party 1 was taken out from the front of the vehicle in front (the trial record 154,15385 et al., 639).

On the other hand, prior to the occurrence of the instant accident, the Defendant and Nonindicted Party 1 stated that, at the time of the instant accident, Nonindicted Party 1, at the time of Nonindicted Party 1, he was carrying the Defendant on the front seat of the Defendant, and that he started driving the instant accident area by drinking alcohol at the strings located in the Nam-gu Incheon, Nam-gu, Incheon, and boarding the accident vehicle, and that the Defendants directly observed the accident at the point of the accident. (The investigation record, 60, 146, 461, and the trial record, 454), Nonindicted Party 1, at the time of the instant accident, was clearly stated that he was taking the Defendant on the front seat of the accident, and the driver at the time of the accident, could not be seen as Nonindicted Party 1.

D. Ultimately, it cannot be deemed that the location of Nonindicted Party 1 launched immediately after the occurrence of the instant accident was the chief of the household affairs, and even if it was the chief of the household affairs, it cannot be the grounds to readily conclude that the person was driving, not the person driving, but the defendant driving.

(3) On the possibility of escape from driving seat:

A. According to the statements at the police and the prosecutor's office at the latest (141), the statements at the police and the prosecutor's office (131 of investigation records, 733 of investigation records, 298 of investigation records, 368 of investigation records, 399 of investigation records, 392 of investigation records, 392 of investigation records) at the prosecutor's office and the court of first instance (390 of investigation records) at the police and the prosecutor's office at the police and the prosecutor's office at the police and the police of the police in the Young-gu, the recent statement at the police station at the police station at the police station at the police station at the police station at the police station at the police station at the police station at the police station at the police station at the police station at the police station at the patrol of the police station at the police station at the patrol of the accident, if the driver's office at the time of the accident was even even after the upper part of the driver's seat at the time of the accident, it seems that the defendant was likely to escape from the vehicle in the accident.

B. However, the above recent vessel made a statement that there was no driver's door in the police, but there was no memory as to whether the driver's seat door was different from each other in the police investigation, and in the court of first instance, there was no credibility prior to the fact that there was no driver's seat door (376 No. 376 of the trial record). In addition, in the first police investigation, the police investigation made a statement that the driver's seat door was separated (47 of the investigation record) and then the latter statement that the driver's seat door was separated, and that the driver's seat door stated in the police investigation at the time of the above police investigation refers to the body body surrounding the even even (326 of the trial record), and thus, there is no credibility in the statement (826 of the trial record).

In addition, the Cho Young-gu stated that even a driver's seat door was far away from the stairs of the underground passage (the investigation record No. 130), while it stated that the front line was far away from the front side of the towed vehicle (the investigation record No. 400), and that the first line was an underground stairs (the investigation record No. 300), but the first instance court stated that it was far away from India (the investigation record No. 368), and that the last sentence was far away from the national highways (the trial record No. 953), and that the present location was different from each other, so the credibility of each of the above statements is doubtful.

C. Meanwhile, in light of the above, grandchildren who opened Nonindicted Party 1 at the scene clearly stated that they were entirely fluored by the prosecution (153,643) and that they were fluorites at the scene, and that they were fluorites at the time of the accident (264, the trial records), 274, mobile equipment (284, the trial records), Kim Young-young (290, the trial records), and Kim Jong-young (325, the trial records) were stated in the prosecutor’s office to the same effect as the above fluorites at the time of the above 7th, the above fluorial line, the recent fluorial line, and the maximum fluorites at the time of the trial, the reason why the 6th fluorite’s statement was unfolded by the prosecutor’s office is that the 7th fluorite’s statement was unfolded by the defendant at the time of the first 6th fluor’s statement.

D. On the other hand, it is difficult to view that the defendant was likely to escape or fall from the driver's seat at the time of the accident because the driver's seat door was left far away at the time of the accident, and even if the driver's seat door was left behind due to the shock at the time of the collision, it is difficult to view that the defendant was absent from the driver's seat without the heavy injury, in light of the degree of damage caused by the storm, the front door of the driver's seat door was seriously damaged.

(4) As to Nonindicted Party 1’s upper part:

A. In light of the diagnosis form (Investigation Records 16, 27) with respect to Nonindicted Party 1, it is recognized that he suffered from the accident of this case such as low blood transfusion shock, left-hand refrat heat, right-to-hand refrat heat, right-to-hand refratating aggregate, and 3-day refratating ruptures, brain dust, brain-proof ruptures and right-hand ruptures, etc. In particular, there is no room to think that he was faced with the upper part of the right-hand rupture or the upper part of the right-hand rupture, etc. of the accident.

However, according to the statement at the prosecutor's office of Kim Young-young (Trial record 861, the trial record) that the seat was the right, and according to the statement at the doctor Kim Young-young's office (Trial record 861, the court below records), it cannot be readily concluded that the seat was faced with the right to the right, and that it was caused by the collision with the right to the right to the right to the right to the right to the other seat (Investigation record 7), and it is recognized that he suffered from the departure of the network (Investigation record 10,000), and that he suffered from the impact on the right to the right to the right side (Investigation record 10,000). In addition, according to the statement at the prosecutor's office of Kim Young-young (Trial record 850,858, the trial record) at the above Kim Young-young's office (Court record 10,000,000 the upper part of the examination record), it is difficult to see that Non-Indicted 1 was the right side of the upper part and the left side.

B. Rather, according to the record, an accident vehicle is found to have been seriously damaged the front part of the driver's seat than the front part of the driver's seat, due to the shock received by the driver, which led to the collision of the road. (No. 248, 249 photographs, court records, 325, 381 et al. of investigation records)

Therefore, it is not clear that the driver, rather than the chief person sitting, has sustained a larger standing room than the driver. While the above mentioned above by Non-Indicted 1, the upper part of Non-Indicted 1 requires a stability for about four weeks, on the other hand, the upper part of the defendant's accident in this case is not a special credit nor a minor injury that requires a treatment for about two weeks (No. 17 and No. 435 of investigation records). In this regard, there is a question that the person who was seated in the driver's seat at the time of the accident was not a defendant but a non-indicted 1.

(5) As to the defendant's leaving the scene after the accident:

According to the records, it is true that the defendant left the scene without taking relief measures for the winners after the accident occurred, and did not report to the police for a considerable period thereafter, but this fact alone does not recognize that the defendant driven the vehicle at the time of the accident.

According to the defendant's statement, the defendant was deprived of his identity after the accident occurred, and he lost his ability to make judgment as he was faced with the accident that has been killed in the vehicle in excess of the fixed number of passengers, and left the yellow site. As such, it is difficult to conclude that the defendant driven a motor vehicle with this point is driving the motor vehicle at the time, although it is difficult to conclude that the defendant was driving the motor vehicle at the time.

3. The conviction in a criminal trial ought to be based on strict evidence of probative value, which leads to a judge to have no reasonable doubt, and even if there is no such evidence, even if there is no doubt as to the defendant's guilt, it cannot be determined in the interests of the defendant, the principle of criminal law has been followed by a case where a member of the party is arbitra.

Although there is no doubt about the defendant in this case, it is difficult to find out evidence with probative value sufficient for the judge to conviction to the extent that there is no reasonable doubt about the above various evidence relations, and therefore, the judgment of the court below which found the defendant guilty of a crime in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against the defendant cannot be erroneous in the determination of the value of evidence and it is reasonable to discuss the appeal.

Therefore, all the judgment of the court below that found the defendant guilty of the crime of attempted fraud in relation to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and sentenced a single punishment shall be reversed, and the case shall be remanded to the Seoul High Court, which is the court below, for a new trial

Justices Lee B-soo (Presiding Justice)