2014Do7945 Indecent Act by compulsion

A

Defendant

Attorney K (Korean National Assembly Line)

Seoul Southern District Court Decision 2013No1869 Decided June 12, 2014

November 26, 2015

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. The summary of the facts charged in the instant case is as follows: (a) around February 15, 2013, the Defendant:30, after the victim (the victim (the victim (the 24 years old) who was a customer at the 'D' place operated by the Defendant’s wife in Guro-gu Seoul Metropolitan Government, left the body of the victim (the 24 years old), left the body of the victim, left the body of the buckbuck, left the body of the victim by hand, let the victim back back back to the body, let the buckbucker back, let the bucker back back to the body of the victim, let the bucker back to the body of the victim, let the bucker back to the body of the victim, let the son back to the body of the victim, and committed an indecent act by force the victim by putting the son who did not seem to have any particular reaction within the panty of the victim, the lower court maintained

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. In a criminal trial, the conviction of guilt ought to be based on evidence of probative value, which leads a judge to have a conviction that is beyond a reasonable doubt, to such an extent that the facts charged are true. Therefore, in a case where the prosecutor’s proof fails to sufficiently reach the degree that such conviction would lead to a conviction, the determination ought to be based on the defendant’s benefit even if there is a suspicion of guilt (see, e.g., Supreme Court Decision 2011Do15767, Feb. 13, 201

The Defendant has consistently denied the facts charged from the investigative agency to the court of the court below, and there is no direct evidence to acknowledge the facts charged except the victim’s statement in the record. Thus, in order to determine the Defendant on the basis of the victim’s statement, which is the only evidence supporting the facts charged, the credibility of the facts charged should be ensured to the extent that the victim’s statement is true beyond a reasonable doubt in light of the reasonableness and feasibility of the content itself, objective circumstances, and empirical rule.

B. The record reveals the following circumstances.

(1) Each room inside the instant marina business establishment is cut off in the state of being cut off at the entrance, and is a structure that can sufficiently bring in the inside or listen to internal sounds outside the entrance, and there was another customer who is receiving a marina from another marina branch in the face of the victim when the victim was faced with a marina from the Defendant. Such circumstances seem to have been sufficiently known at the time of the instant case, and there was no other circumstance that the victim could interfere with immediately resisting or refusing the Defendant’s act.

(2) The aggrieved party purchased Magrophones sold by the Defendant on the Internet website called “J” and first visited the Marina branch of this case at the instant Marina, but it is not clear that he/she received Magros to the extent that he/she would receive 1 and twice a month in which he/she would receive Magros.

Nevertheless, according to the statement made by the victim at the court of original instance, the victim saw that the victim would sacrife but sacrife, but she thought that the victim might sacrife but sacrife while she would sacrife, and that she was aware that she was not included in the place where she would receive the victim, and that she would only take place by a method that she sacrife on both her chest, but she considered that she was her only when she was her to take her hand into her panty, and she was her hand on his her hand by considering that she was her only when the defendant put his her her hand into the panty, and that she was her hand on the part of the defendant. The defendant was able to think that she would end her part rather than avoiding the place.

In addition, the victim got out of the end of the "masts" and then got out of the place of masts, the victim made a statement to the effect that "the defendant did not recognize the defendant's mistake on the completion of maths, although he did not recognize the defendant's mistake on the completion of maths". The victim also made a statement to the effect that "the defendant did not recognize the defendant's mistake on the completion of maths."

Nevertheless, the victim did not immediately report to the investigation agency, and it was found that the defendant was found to have committed an indecent act with his/her friendship three days later, and that the defendant continued to deny his/her business and did not interfere with his/her business, and that he/she did not go to the police station to investigate if he/she made a tea complaint.

At the time of the instant case, which can be seen by the victim’s statement, the victim’s response and attitude, and the process, behavior, and circumstances leading to the victim’s marina business establishment after receiving the victim’s math, do not seem to be a common figure to be taken by the victim. Rather, the victim suffers a strong doubt as to whether the victim committed an indecent act against the victim, such as the victim’s statement. Meanwhile, the victim asserted that the victim expressed a strong doubt as to whether the victim committed an indecent act against the victim as stated in the victim’s own panty, and that the victim took part in another room. However, the victim did not have any material supporting the victim’s claim, and only submitted to the court of the lower court a written confirmation that he was unable to hear any sound at the time.

(3) The Defendant, along with wife, operated a marina business, and operated a business by selling scoophones on the Internet site called “J”. As seen earlier, the room in which the victim received scoos was strong opening, and there was another customer in the immediately adjacent room.

Thus, in light of the Defendant’s business method using the Internet with strong radio wave with his family, the victim’s claim or rescue request is easily delivered to another person, and the structure and field situation of a marina place business where it is easy to perceive the crime, etc., it is doubtful whether the Defendant might have been able to commit an indecent act against the victim who was a guest through the warm Internet website.

In addition, it is not possible to find out that the contents of the defendant's statement are inconsistent with any particular contradictions or objective facts.

C. Examining these circumstances in light of the legal principles as seen earlier, even if considering the possibility that the victim did not seem to have any reasonable attitude or response due to the instant situation, it is difficult to readily conclude that the Defendant committed an indecent act by force against the victim, such as the facts charged, on the sole basis of the victim’s statement.

Nevertheless, the lower court convicted the Defendant of the instant facts charged solely on the basis of the victim’s statement that is insufficient to have a reasonable doubt that the facts charged are true. In so doing, the lower court erred by misapprehending the legal doctrine regarding the degree of proof of facts charged, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error has merit.

3. 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 Kim Jae-young

Justices Lee In-bok, Counsel for the appeal

Justices Go Young-young

Justices Lee Dong-won