[1] The probative value of indirect evidence in a criminal trial for the crime of murder, etc., and the degree of proof to acknowledge the liability for murder or death of violence to the defendant who denies the whole crime under the circumstances where the body is not discovered

[2] The case reversing the judgment of the court of first instance which recognized the defendant's crime of assault and bodily injury and the crime of abandonment of a dead body, and finding the defendant not guilty on the ground that there was an error of mistake

[1] In the case of a crime of murder, etc., statutory punishment, such as murder, which is heavier than direct evidence, can be acknowledged only by indirect evidence without direct evidence, and even if the body of the victim was not discovered, indirect evidence may be comprehensively examined in relation to each other and recognized the facts charged of the crime of murder. However, in order to acknowledge the crime of murder against the defendant who denies the whole crime in a situation where the body is not discovered, a careful judgment by indirect evidence related to the facts charged is required. In addition, the fact of the victim’s death should be proven additionally and preemptively, as well as the fact of the victim’s death should be proven to the extent that there is no reasonable doubt that the victim’s death was caused by the act of the defendant with the intent of murder. In addition, as well as in order to recognize the liability for the crime of murder against the defendant who denies the whole crime in a situation where the body is not discovered, it should be proved to the extent that there is no reasonable doubt for deliberation

[2] The case reversing the judgment of the first instance court that recognized the crime of assault and the crime of abandonment of the body is reversed and acquitted on the ground that, in light of the fact that the victim had already died, even though it is highly probable that the victim would have died, considering the fact that all evidence was missing for six years after the case, it is insufficient to view that the fact of the victim's death was proven beyond reasonable doubt, and further, the evidence submitted by the public prosecutor alone is insufficient to view that the evidence submitted by the witness was proven beyond reasonable doubt as well as the primary facts charged of murder, and that the facts charged of the crime of abandonment of the body are insufficient to prove beyond reasonable doubt, on the ground that the evidence submitted by the public prosecutor is insufficient to prove that there was no reasonable doubt in light of the victim's primary facts charged of murder, and that the facts charged of abandonment of the body are insufficient to prove to the extent that there was no reasonable doubt.

[1] Articles 250(1) and 262 of the Criminal Act; Articles 307 and 308 of the Criminal Procedure Act / [2] Articles 161(1), 250(1), and 262 of the Criminal Act; Articles 307 and 308 of the Criminal Procedure Act

[1] Supreme Court Decision 99Do3273 delivered on October 22, 1999 (Gong1999Ha, 2457) Supreme Court Decision 2007Do10754 Delivered on March 13, 2008

Defendant

Defendant and Prosecutor

00 Hun-Ga1

Attorney Cho Chang-chul

Daegu District Court Decision 2010Gohap129 Decided September 28, 2010

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

(a) Basic facts;

Around December 2004, the Defendant was engaged in the business of collecting loans from a credit service office called "○○ enterprise" located in Daegu-gu, Daegu-dong, and the Defendant was living together at the victim's house located in Daegu-gu, △△△△△△△△ (hereinafter omitted) from January 2005, when he was engaged in the business of collecting loans.

피고인은 평상시 피해자가 칵테일바에 근무하며 다른 남자들과 술을 마시고 집에 늦게 들어오는 것에 대해서 불만을 가지고 있었다.

On January 22, 2005, from around 21:00 to around 01:00 on the following day, the Defendant requested the victim to use a telephone to sing on the door, with five persons, including Nonindicted Party 2, etc., who are the Defendant’s pro-Japanese-dong, and the Defendant’s pro-Japanese-dong-dong-dong-dong-dong-dong-gu, Seogu-gu, Seodong-gu, and with five persons, including Nonindicted Party 2, etc., who are the Defendant’s pro-Japanese-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-gu, and on January 23, 2005:

However, the victim refused to do so and did not enter the above singing, and the defendant did not want to do so to the defendant's friendship, and did not want to do so to do so to the defendant's friendship, and he did so at the singing room on January 23, 2005 and returned home to the victim's house living together on January 23, 2005.

On the same day, around 04:30 on the same day, the victim returned home with Non-Indicted 3, who was under the influence of alcohol, and Non-Indicted 3 returned to his house that he brought the victim into the house of the victim.

Along with the victim's sound entering the house, the victim was able to take a bath for the victim and the dispute with the victim was punished on the ground that the victim was in a late manner under the influence of alcohol, even though the victim was frighted to sing.

B. The main purpose of the crime of murder and assault is to find the death of another person.

1) Main facts charged

위와 같이 다툼을 벌이던 중 화가 난 피고인은 피해자를 살해할 마음을 먹고, 2005. 1. 23. 07:00경 피해자의 집에서 피해자의 머리를 벽에 찧는 등의 방법으로 피해자를 살해하였다.

2) Preliminary facts charged

위와 같이 다툼을 벌이던 중 화가 난 피고인은 2005. 1. 23. 07:00경 피해자의 집에서 피해자의 머리를 벽에 찧는 등의 방법으로 피해자를 폭행하고, 이로 인하여 그 무렵 피해자를 사망에 이르게 하였다.

(c)the point of the abandonment of the corpse;

In order to conceal one’s own criminal act, the Defendant laundryed the victim’s body and abandoned the victim’s body in an influenced manner, while citing the victim’s body by an influent method (the first instance court limited the date and time of the crime to “before the end of January 27, 2005,” and found the Defendant guilty of this part of the facts charged after deducting the part of “the victim’s laundry laundry infing the victim’s blood trace” from among the facts charged.

2. Judgment of the court below and a summary of the grounds for appeal

A. The judgment of the court below

For the following reasons, the lower court determined that the Defendant was fully aware of the fact that he abandoned the body of the victim in order to cause the death of the victim by assaulting the victim and to conceal it. However, it is difficult to view that the Defendant had a criminal intent to commit murder, the lower court determined that the murder, which is the primary charge, is not guilty, and that the Defendant was guilty only of the death

1) According to the statements made by Nonindicted 3, Nonindicted 4, and Nonindicted 5 and Nonindicted 6, the victim’s front house, Nonindicted 205, the victim’s home, and Nonindicted 5 and Nonindicted 6, the victim’s home 203, the victim’s home her home her home, the victim’s home her home her home from January 23, 2005 to January 23, 2005, where the victim and the Defendant her home her home her home her home she was only the victim and the Defendant, and the Defendant her home △△△△△△ 201, the victim and the Defendant her home her home her home her home her home she was her only the victim and the Defendant her home her home her home her home her home her for the reason that her her her

2) If the victim is alive, it is difficult in light of the empirical rule to find out the fact that the victim satisfy contact was cut down after returning home on the new wall on the day of the instant case, and that the victim satisfyed in an unfolded state until five years have passed thereafter. There is no reason why the victim would act as such.

In addition, as seen earlier, even though it is clear that the Defendant committed assaulting the victim on January 23, 2005 and harming the victim, and instead, denies the situation that the victim did not see the victim's house in the new wall on the same day, it is reasonable to view that the victim's body was not found, but the fact that the victim died in his house at the time and time of the instant crime was proven without reasonable doubt.

3) It is evident that the Defendant made a clear assertion that his own criminal act is not compatible with the statement of Nonindicted 3 and neighbors on the day of the instant case. This is when the victim died by means of saving the victim's head, faced with the wall, etc., and the victim attempted to conceal the crime on the day of the instant case as if the victim did not enter the house. However, it was clearly stated that the Defendant’s initial statement cannot be reversed, and thus, it cannot be viewed only to have maintained the same false assertion as the initial statement because it cannot be reversed.

또한 이 사건 당일 피해자로부터 부재중 전화가 왔다면서 회사 동료에게 자신의 휴대전화를 보여주는 시늉을 한다든지, 전날 함께 술을 마신 친구에게 전화하여 뜬금없이 자신이 사무실에 나왔다거나 드라이브를 가자는 등의 이야기를 하는 행위는 이례적이어서 이 사건 범행을 저지른 이후 당황한 마음에 알리바이를 만들기 위하여 그러한 행동을 한 것으로 볼 수 있다.

그리고 피해자에 대하여 별다른 미련이 남아 있지 않았다는 피고인의 진술과 달리, 피고인은 평소 동거하던 피해자가 칵테일바에서 일하는 것을 매우 싫어하였고, 이 사건 발생 전날에도 피해자가 술을 마시고 연락이 없는 것에 대하여 화가 나서 친구들에게 말도 없이 돌아갔는데, 그런 피고인이 피해자가 연락이 되지 않음에도 피해자를 기다리거나 찾기 위한 노력을 하기는커녕 오히려 하루 만에 자신의 짐을 챙겨 피해자의 집에서 나가버린 것은 피해자가 이미 사망한 사실을 알고 있기에 자신이 의심받지 않을 방안을 강구하는 와중에 하게 된 행동으로밖에 이해할 수 없다.

In addition, in full view of other indirect evidence such as the defendant's ordinary character and behavior that had previously been assaulted by a female-friendly woman-friendly Gu, and the escape from China while being investigated by the police as a suspected suspect at the time of 2005, and the fact that there were many kinds of times in the victim's residence, but the blood trace of the victim and the defendant was discovered, it can be sufficiently recognized that the defendant committed violence to the victim and caused the death.

4) Even though the defendant was found to have abused the victim at the victim's home on January 23, 2005 and died on or around 07:00, considering that the body of the victim was not found at home, it cannot be deemed that the defendant had abandoned the victim's body in an unsound manner only around that time, and thus, it is also found guilty of abandonment of the body.

B. Summary of grounds for appeal

1) Defendant

A) misunderstanding of facts

Around 02:30 on January 23, 2005, the Defendant returned home and waited for the victim at around 11:00 on the same day. Along with this, the Defendant only sleeps, but did not cause death by assaulting the victim, and did not abandon the victim’s body. Therefore, the lower court erred by misapprehending the fact that recognized the crime of assault and the crime of death or death, or the crime of abandonment of the victim.

B) Unreasonable sentencing

The punishment sentenced by the court below (seven years of imprisonment) is too unreasonable.

(ii)a prosecutor;

A) misunderstanding of facts

Comprehensively taking account of the evidence submitted by the prosecutor, it is sufficiently recognized that the Defendant had a criminal intent to commit murder. Therefore, the lower court erred by misapprehending the fact that there was no proof of facts constituting murder among the facts charged in the instant case.

B) Unreasonable sentencing

The sentence sentenced by the court below is too uneasible and unfair.

3. The judgment of this Court

A. Case progress

According to the evidence duly adopted and examined by the court below and the trial court, the following facts are recognized:

1) 피해자 공소외 1(1983. 10. 23.생, 여)은 18세 때 가출하여 그 무렵부터 대구 시내 유흥업소에서 종업원으로 일하였다. 피해자는 2004. 10. 20.경부터 2004. 12.말까지 유흥업소에서 만나 알게 된 공소외 3과 다방을 동업하였다. 피해자는 그 후 대구 수성구 두산동에 있는 ‘ ▷▷▷’이라는 상호의 칵테일바에서 공소외 3과 함께 종업원으로 일하였다.

The victim had livedd with the non-indicted 7 from July 2003 to December 2004.

2) The Defendant (the remainder of September 16, 1979) committed an act of collecting loans from a lending company called “○○ Enterprise”. On December 2, 2004, the Defendant came to know of the victim from the coffee delivery and began to return to the Defendant around that time.

On January 2005, the Defendant sent a business trip to the local police officer to the local government. On January 1, 2005, the Defendant entered the Daegu Southern-gu 201, where the victim lives (hereinafter omitted) and lived with the victim from around 201.

3) On January 22, 2005, the Defendant, from around 21:20 on January 22, 2005 to around 21:2, 2005, performed drinking with five persons, including non-indicted 2, etc., at the seat of the head of the ▽▽▽▽▽ Seo-dong, Daegu-gu, and the seat of the head of △△ Seo-gu, Daegu-gu, as well as the head of the Dong-dong, and went to the rest of the place of residence, which was located in the Seocho-gu, Daegu-gu, Daegu-gu, and on January 2

Defendant (portable phone number: 1 omitted) called the victim (portable phone number: 2 omitted) for one minute and 25 seconds from the phone at 02:06 on the same day (Evidence No. 47,55 pages of evidence).

4) At around 02:30 on the same day, the Defendant returned to Nonindicted 2, etc. △△△△△, and returned to the Defendant under 02:38 on the same day, sent the phone again to the victim for nine seconds (Evidence No. 47,55 pages).

From 02:42 to 03:09 on the same day, the Defendant made a telephone conversation with Nonindicted 8, 2, 9, and 10 (Evidence No. 47 pages). Until then, the victim did not enter △△△△ 201, and the Defendant sleeps after having a telephone conversation as above.

5) The Defendant, at around 16:00 on the same day, posted △△△△△△△ 201 on the same day with his locking, sports clothes, Cheongbba, Titts, and south banks, thereby leading him to his home.

On January 24, 2005, the following day, at around 01:00, the Defendant once again had the remaining things, such as household clothes, around 201, △△△△△△, and thereafter, he lived only at his own home.

6) On January 26, 2005, Non-Indicted 3 moved to △△△△△ 201 along with the Defendant on January 26, 2005. At that time, the victim did not work in the house, and went back to △△ 201, along with Non-Indicted 7 on January 28, 2005. At that time, the victim did not have the house.

At around 22:30 on January 28, 2005, Non-Indicted 3 reported the withdrawal to the victim on the ground that the victim entered the Daegu Southern Police Station on January 23, 2005 and did not contact with △△△△△△△ on January 23, 2005 and reported the withdrawal to the victim on the ground that his whereabouts are unknown (Evidence 1:3 pages).

7) From January 31, 2005, the Defendant was investigated by the police as a suspect of a missing case against the victim. On April 13, 2005, the Defendant left the Republic of China under investigation. On March 1, 2010, the Defendant returned from China to the investigation agency and voluntarily attended the investigation agency.

8) The victim did not contact or appear to contact with his family until six years have passed since January 23, 2005, and there was no medical examination and treatment to which the National Health Insurance applies, and there was no deposit money from the bank account. In addition, the victim's body has not been discovered until six years have passed since the date.

B. Determination

The judgment of the court below that the facts charged in this case, which the defendant committed violence against the victim and caused death, and abandoned the victim's body to conceal this, was proved to the extent that there is no reasonable doubt, is not acceptable for the following reasons.

1) Legal principles

In the case of a crime with heavy statutory penalty, such as murder, it can be found guilty by indirect evidence without direct evidence, and even if the body of a victim is not discovered, indirect evidence can be comprehensively considered under mutual relation and acknowledged as a charge of murder (see Supreme Court Decision 9Do3273, Oct. 22, 199).

However, in finding such guilty, a careful judgment is required based on indirect evidence closely related to the facts charged, and in order to recognize the liability for the crime of murder against the defendant who denies the whole crime in a situation where the body is not found, the fact of the victim's death should be proven additionally and preemptively, as well as the fact of the victim's death should be proved to the extent that there is no reasonable doubt that the death of the victim was caused by the act of the defendant with the intent to kill (see Supreme Court Decision 2007Do10754, Mar. 13, 2008). In addition, in order to recognize the liability for the crime of assault against the defendant who denies the whole crime in a situation where the body is not discovered, the victim's death should be proved to the extent that there is no reasonable doubt that the death of the victim was caused by the act of

2) As to the statements made by Nonindicted 3, 4, 5, and 6

A) Whether the victim entered the house or not

(1) At around 04:00 on January 23, 2005, Nonindicted Party 3, the victim’s workplace club, called “Nonindicted Party 3, a male-friendly arrest Nonindicted Party 11, sent off the victim’s vehicle in front of △△△△△△△, but the victim got her her her her her her her her her her she and her her she was her her her her her her her her she and her her she was her her her her her her she. The Defendant opened the △△△△△△△ Party 201, and was her her her her her she was her her her she was her in the body.”

(2) The Defendant stated that “On January 23, 2005, the day of the instant case, she sleep off the panty, and there was no person who was off the panty panty in the middle of the year, so he was under the influence of alcohol once. As such, the Defendant was sleeped in the toilet, but he did not sleep, and thus, deemed the victim to have discussed.”

(3) In full view of the aforementioned statements made by Nonindicted 3 and the Defendant, the victim’s entry at least around 04:30 on January 23, 2005, at least △△△△△△, as stated in the facts charged in the instant case.

B) Regarding Nonindicted 4, 5, and 6’s statements

(1) 피해자의 앞집인 △△△빌 205호에 살고 있던 공소외 4는 “2005. 1. 23. 04:00경 여자가 우는 소리 등에 잠이 깨어 창문으로 내다보니, △△△빌 앞 노상에서 한 여자는 울고 한 여자는 달래고 있었다. 30분 이상 그런 상황이 지속되다가 두 여자가 빌라 안으로 들어와 2층 계단으로 올라오는 소리가 났고, △△△빌 201호로 들어가더니 한 여자는 간다고 인사하고 내려갔다. 그 후 10분 정도 지난 후부터 약 2시간 동안 △△△빌 201호에서 여자가 흐느껴 우는 소리가 들리고, 남자가 ‘씹할년아’라고 하며 뺨을 때리는지 찰싹찰싹하는 소리도 나고, 무언가를 벽에다 부딪히는 것처럼 둔탁하고 무거운 쿵쿵하는 소리가 들렸다. 소리가 거의 그칠 때쯤 여자가 구토하는 소리도 들리기에 신고를 하고 싶었으나, 자신은 근로기준법 위반으로 기소중지 상태였기 때문에 신고를 하지 못하고, 다른 집에서 신고해 주었으면 좋겠다고 생각하였다.”고 진술하였다.

피해자의 옆집인 △△△빌 203호에 살고 있던 공소외 5, 6은 “2005. 1. 23. 05:00경 △△△빌 201호에서 남자가 여자에게 악에 받힌 목소리로 ‘이 씹할년아’라고 하며 고함을 지르고, 벽에 무언가가 쿵쿵 부딪히는 소리와 함께 여자의 비명소리와 울음소리가 들렸다. 같은 날 07:00경까지 그러한 소리가 지속되어서 혹시 저러다가 사람 죽는 것 아닌가 하는 생각에 신고를 해야 할지 고민하였으나, 괜히 남의 일에 참견하는 것 같아서 신고는 하지 않았다.”고 진술하였다.

위와 같이 공소외 4, 5, 6은 수사기관부터 당심 법정에 이르기까지 2005. 1. 23. 05:00경부터 07:00경까지 사이에 여자가 흐느껴 우는 소리, 쿵쿵거리는 소리 등이 났는데, 그 모든 소리가 난 곳은 △△△빌 201호라고 진술하였고, 공소외 4, 5, 6이 허위로 진술할 동기도 찾을 수 없다. 또한 △△△빌은 원룸으로서 방음이 잘 안 되는 구조였고, 그와 같은 소리가 났던 시간은 일요일 새벽이었으므로, 공소외 4, 5, 6이 △△△빌 201호에서 나는 소리를 비교적 잘 들을 수 있었던 점은 인정된다.

(2) However, Nonindicted 3 made a statement that “The victim was fluorily fluoring, and even after getting off from the vehicle, the victim was fluorily fluorily. The victim was fluorily fluorily fluorily fluored. The victim continued entering the △△△△△△△ 201 (Evidence No. 214 and Nonindicted 3’s legal statement).” (Evidence No. 214 and Nonindicted 3’s legal statement)

In light of these circumstances, the victim continued to enter △△△△△△△△△ Group 201 and Nonindicted 4, 5, and 6 are likely to have been ullled by the victim’s sound.

(3) 이 법원의 현장검증 결과에 의하면, △△△빌은 방음이 잘 안 되어 각 호실이나 바깥에서 나는 소리가 비교적 잘 들리기는 하였으나, △△△빌 201호, 202호, 205호, 303호의 안과 △△△빌 301호, 401호의 밖에서 손으로 벽을 두드려서 쿵쿵거리는 소리를 내고서 △△△빌 203호 안에서 들어보았을 때 어느 곳에서 무슨 원인으로 나는 소리인지 정확히 알기는 어려운 사실을 알 수 있었다.

△△△빌 201호의 바로 옆집인 △△△빌 202호에 살아서 △△△빌 201호에서 나는 소리를 비교적 잘 들을 수 있었던 공소외 12는 “쿵쿵거리는 소리를 듣기는 하였으나, 어디에서 소리가 났는지는 알지 못한다.”고 진술하기도 하였다(증거기록 594쪽).

공소외 5도 “계속해서 쿵쿵하는 소리가 나서 그 쿵쿵 소리가 무슨 소리인지 궁금해서 현관문을 열고서 그 소리를 들어보았다. 그래도 무슨 소리인지 알 수가 없었다.”고 진술하였다(증거기록 346쪽).

(4) 이 사건 공소사실과 같이 피고인이 피해자의 머리를 잡고서 벽에 계속하여 찧었다면, 쿵쿵거리는 소리가 들리는 순간 피해자의 울음소리는 더 커지거나 그쳤어야 하고, 그 순간 피해자의 비명소리도 들렸을 가능성이 크다.

그러나 공소외 4는 2005. 1. 29. 처음 경찰에서 조사받을 때에는 “비명소리는 없었다. 때리는 소리는 아니고, 방바닥을 치는 소리 같은 쿵쿵하는 소리만 들렸던 것 같다.”고 진술하였다(증거기록 35쪽).

또한 공소외 5도 “쿵쿵거리는 소리가 들리는 순간에 여자의 울음소리가 더 커지거나 멈추지는 않았다. 여자의 울음소리는 시종일관 비슷한 크기였다.”고 진술하였다(공판기록 48쪽, 공소외 5의 당심 법정 진술).

더구나 뒤에서 보는 것과 같이 △△△빌 201호의 벽이나 바닥에서 피고인이 피해자의 머리를 잡고서 찧었다는 것을 뒷받침할 만한 피해자의 혈흔이나 그 밖의 객관적 증거가 전혀 발견되지 않았다.

(5) On January 29, 2005, Nonindicted 3, along with the police Nonindicted 13 on January 29, 2005, told Nonindicted 7 on January 28, 2005, △△△△△△ 205, which was prior to the opening of △△△ 201, to Nonindicted 7, and confirmed Nonindicted 4 in advance. At that time, whether Nonindicted 7 did not enter Nonindicted 4, but rather, whether Nonindicted 7 did not have any sound 201 from △△△△△ 201 (Evidence evidence record, 87 pages of the trial record, and Nonindicted 3’s trial statement).

(6) 위와 같은 사정을 종합하여 보면, 피해자는 △△△빌 201호 안에 들어가서까지 계속하여 큰 소리로 울었고, 새벽에 그와 같은 피해자의 울음소리를 들은 공소외 4, 5, 6은 △△△빌 201호에서 남녀가 싸우는 소리를 못 들었느냐는 질문을 받고서 어느 곳에서 무슨 원인으로 나는 소리인지는 정확히 모르지만 쿵쿵거리는 소리를 들은 것과 결합하여 △△△빌 201호에서 남녀가 싸우는 소리를 들었다고 추측하거나 과장하여 진술하였을 가능성을 배제할 수 없다.

그렇다면 △△△빌 201호에서 남녀가 싸우는 소리를 들었다는 공소외 4, 5, 6의 위와 같은 진술은 피고인이 피해자의 머리를 잡고서 벽에 계속하여 찧음으로써 피해자를 살해하거나 폭행하여 사망에 이르게 하였다는 이 사건 공소사실을 뒷받침하기에는 부족하다.

3) As to objective circumstances

A) As to the blood trace, etc.

(1) On January 31, 2005, the police non-indicted 14, etc., who belongs to the Daegu Southern Police Station Scientific Investigation Team, conducted on-site identification of △△△△△ 201, and requested an appraisal of the blood trace. On March 2, 2005, the National Scientific Investigation and Investigation Institute appraised that the blood trace of the victim was discovered from the materials taken from visit glass (No. 1, No. 426 pages of evidence, evidence No. 9, and evidence No. 427 pages of evidence No. 427 of evidence No. 11) and the materials taken from the cell lid of the Defendant’s genes (Evidence No. 11) (Evidence No. 40 and 42, 136 and 142, 424 and 429 pages of evidence record).

In addition, on February 2, 2005, the police requested the Defendant to conduct a blood scam, scam, n, etc., and the National Scientific Investigation Institute found that the blood scams of the victim and the Defendant were discovered from the new scam taken on March 2, 2005 (Evidence No. 18, Evidence No. 430) (Evidence No. 136-142, Evidence No. 184, Evidence No. 136-142, Evidence No. 184).

(2) 그러나 방문 유리에서 발견된 피해자의 혈흔과 안방 침대 이불 위에서 발견된 피해자의 혈흔은 그 지름이 1㎜도 안 되는 정도의 극히 소량이었고, 피고인의 신발에서 발견된 피해자와 피고인의 혈흔도 육안으로 확인이 어려울 정도의 극히 소량이었다(증거기록 426, 427, 430쪽, 공소외 14, 15의 당심 법정 진술). 피고인이 피해자의 머리를 잡고서 벽에 계속하여 찧음으로써 피해자를 살해하거나 폭행하여 사망에 이르게 하였다는 점을 뒷받침하기에는 그 혈흔의 양이 너무나도 적다.

In addition, since the victim got home on January 23, 2005 on the day of the instant case and got kneeee (Evidence No. 20 pages). As above, the victim’s blood 201 lending and the Defendant’s personal attack discovered in △△△△ may not be ruled out.

Furthermore, in light of the fact that △△△△△△△△△△△△△201’s residence was the victim’s residence, and the Defendant had resided there for about two weeks, and that the blood trace of the victim or the Defendant was extremely small, it cannot be ruled out that the victim’s blood trace or the Defendant’s blood trace and genes found in △△△△△△△△△△△△△△△△△△ 201, together with the victim and the Defendant △△△△△△△△△ 201, regardless of the facts charged in this case

(3) Although there was a trace of using and flowing side of the place in which the blood trace of visiting glass was discovered (Evidence No. 425 pages), there was no evidence to acknowledge that it was a trace of cutting the blood trace, and there was no evidence to find out the blood trace of the victim in such place (Non-Indicted. 14’s current trial statement).

만약 피고인이 피해자의 머리를 잡고서 방문 유리에 계속하여 찧음으로써 피해자를 살해하거나 폭행하여 사망에 이르게 하였다면, 방문 유리가 깨지거나 금이 가는 등의 흔적이 남았을 가능성이 큰데도, 방문 유리에는 그와 같은 흔적이 없었다.

(4) As to △△△△△ 201, Nonindicted 14, the police officer of the Daegu Southern Police Station’s Scientific Investigation Team at the time, stated that “No special trace exists that could be used as evidence of the crime except that the Defendant was on the back of the intrusion at that time” ( Nonindicted 14’s statement at the trial).

B) With respect to the trace of a department of the flooded unit

According to the results of the police's on-site identification of this case, it was found that △△△△△△ 201 was shakinged (Evidence Records 338, 339 pages).

그러나 침대에 있는 부서진 흔적은 방바닥에서 약 15～20㎝ 높이에 있으므로, 피고인이 피해자의 머리를 잡고서 그곳에 찧는 것은 물리적으로 쉽지 않을 것으로 보인다. 그뿐만 아니라 피고인이 피해자의 머리를 잡고서 그곳에 찧었다는 것을 뒷받침할 만한 피해자의 혈흔 등이 그곳에서 발견되지도 않았다(공판기록 69쪽, 공소외 14의 당심 법정 진술).

C) As to the cleaning trace, etc. of toilets

(1) On January 29, 2005, Non-Indicted 13 of the Daegu Southern Police Station and Non-Indicted 16 of the female juvenile community searched Non-Indicted 3 and Non-Indicted 16 of the victim’s speech (Evidence No. 91, 92 pages) and Non-Indicted 13 stated that “No. 91, 92 of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of the record of

(2) However, on January 31, 2005, the police Nonindicted 14 affiliated with the Daegu Southern Police Station Scientific Investigation Team at the △△△△△△△△ 201, stated that “There was no situation in which it was hard to see that the Defendant was making a clear cleaning on the floor of the ward and the room, and there was no blood trace of the victim at all times. There was no special difference between toilets, wards, and rooms in relation to the trace of cleaning at the time of on-site identification. There was no special difference in the perception that there was any difference in the number of toilets, wards, and rooms (the current trial statement of Nonindicted 14).”

In addition, since the defendant stated that "the defendant was a cleaning agent with a string of soil, and has a string of water," it may be due to that the toilet was clean.

Meanwhile, it was found that Nonindicted 13, the police, at the time of search as above, laundry was found that Nonindicted 13 was sleeped as being laund while laund and launded. However, there is no evidence to support that the Defendant, as stated in the facts charged in the instant case, was laundrying a blood trace after committing the crime, and there was no evidence to support that the Defendant was laundry of the Victim’s blood or laundry of the crime, and that there was no evidence to support that the Defendant was laundry due to the fact that the Defendant was laundry.

D) As to the defendant's standing

(1) Around January 7, 2004, the victim had been a criminal record by assaulting Nonindicted 7 as a major soldier on the ground that the victim drinking alcohol together with Nonindicted 16 and Nonindicted 7, who was living together at the time, and Nonindicted 7, who had been living together, did not talk with Nonindicted 16 (Evidence No. 618, 623). In addition, the victim worked for a long time as an employee of an entertainment business, and the key amounted to 170cm.

In light of these circumstances, if the defendant kills or assaults the victim as stated in the facts charged in this case and caused his death, it is reasonable to view that the victim might have left a her body and scambling of the defendant's body while resisting the resistance.

(2) However, the police confirmed, at the initial stage of the investigation (the defendant was investigated by the police for the first time on January 31, 2005), that he was in the body of the defendant while she was off the clothes of the defendant, but did not find any trace of the defendant's body or crime (Evidence No. 501 of the evidence record, and Non-Indicted. 15's trial statement).

E) As to the results of automobile identification

(1) The police, as stated in the facts charged in the instant case, killed or abused the victim and caused the death of the victim, and conducted a sense of identification on the said two vehicles, taking into account the possibility that the body was transported by using a passenger car owned by the Defendant (vehicle No. 1 omitted) or the mother of the Defendant’s (vehicle No. 2 omitted).

(2) However, the above two automobiles did not find the blood trace of the victim, and did not find the victim's oil or any trace of the crime (see the written opinion presented by the prosecutor at the trial on December 29, 2010). Moreover, the aforementioned two automobiles were not exposed to the unmanned control camera due to speed violations in the Daegu and the Gyeongbuk-do area from January 22, 2005 to 09:00 on January 22, 2005 (Evidence record 600 pages).

F) As to the absent telephone:

(1) The Defendant confirmed his mobile phone due to his own occurrence. On January 23, 2005, in the absence that he did not receive from around 03:30 on the same day to from around 05:30 on the same day, the Defendant stated that 20 telephone was about 20, and among them, the victim was about 8, in the absence of the phone.

(2) The mobile phone used by the Defendant and the victim (However, the name of the victim was not the victim, but the victim, Nonindicted 16) was admitted to the SK Telecom (Evidence No. 46 pages). However, in the case of SK Telecom, the absence of the phone does not appear in both the call details and the reverse call details (the trial record No. 148 pages), and it cannot be readily concluded that there was no telephone among the absence of the Defendant.

(3) The police statement of January 31, 2005 against the defendant stated that "the list of telephone calls in the absence does not remain in the cell phone of the defendant, and the defendant was unable to reach the cell phone of the defendant" (Evidence No. 87 pages).

However, the Defendant stated, at the court of the first instance, that “There is no time such as the police. It is difficult to say that the telephone list was deleted at a low level, including the telephone list among the absence of the cell phone storage capacity.”

Generally, among the absence of a cell phone, the list of telephone, received telephone calls, and call calls, etc. were stored in all. However, during the cell phone period used at the time of the instant case on January 23, 2005, when the storage capacity is small and the number of times such as the list of telephone calls, etc. exceeds a certain number, it cannot be readily concluded that the Defendant’s statement was a false statement that “The telephone from January 23, 2005 to 03:30 on the same day was calls between the victim and 05:30 on the same day, but there was approximately eight telephone from the absence of the Defendant, but the list of telephone calls, etc. was deleted at low time, and did not remain in the Defendant’s cell phone period.”

(4) Non-Indicted 17, an employee of the lending company employed with the Defendant, stated that “Non-Indicted 17, who had been employed by the Defendant, had eight or more telephone calls from the victim, but did not directly verify whether there was a telephone due to the Defendant’s absence of accurate knowledge (Evidence Records 109, 126, 127 pages).”

The Defendant, as such, made a call during the absence, and presented his mobile phone to Nonindicted 17, stated that “I am smoking while smoking coffee outside the office, and Nonindicted 17 asked that I am son’s work. Therefore, I expressed that “I am son with the victim on the preceding day, but I am son. I am son’s mobile phone to Nonindicted 17, while I am am son’s cell phone because I am am off with the victim. I am am son’s mobile phone (the Defendant’s oral statement at the trial).”

First, the lower court acknowledged that the date and time when the Defendant shown his cell phone to Nonindicted 17 as above was “Abrupted on the day of the instant case, Jan. 23, 2005.” However, Nonindicted 17 stated not only that the Defendant did not make any statement by specifying the date, but also that “the Defendant did not have any operation related to the loan on Jan. 23, 2005 and Jan. 24, 2005” (Evidence No. 109 pages) and January 23, 2005 was a day on which the Defendant would not normally work as Sundays. In light of the above, the date and time when Nonindicted 17 shown his cell phone to Nonindicted 17 is “Abrupted on Jan. 23, 2005,” and the date and time when the Defendant shown his cell phone to Nonindicted 17 is highly likely to be “abrupted on the day of the instant case.”

Furthermore, in light of the fact that Nonindicted 17’s cell phone machine can be seen by Nonindicted 17, the victim could easily confirm whether the absence was the victim, and that there was no telephone in the absence of the victim, the judgment of the court below that determined that the Defendant was an absentee telephone to make the victim 17 even without the victim’s absence, and that Nonindicted 17 had shown a cell phone device to Nonindicted 17 is difficult to understand. Rather, as the Defendant’s consistent assertion, it cannot be ruled out that the Defendant had shown his cell phone device to Nonindicted 17 while the victim was absent, and that there was no such absence.

(5) In full view of the above circumstances, the possibility that the victim might have been a victim from January 23, 2005 to 05:30 on the same day cannot be ruled out completely.

Therefore, unlike the facts charged in this case, the possibility that the defendant was killed or abused the victim in △△△△ 201 and caused the death of the victim cannot be ruled out completely, since the victim entered △△ 201, which was not together with the defendant at that time.

4) Regarding the defendant's conduct

A) With respect to unshackers, etc.

(1) The Defendant consistently stated that “after January 23, 2005, the Defendant 11:00 on the same day, she divingd alcoholic beverages in a drunken state” from the investigative agency to the court of the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the same time, and there is no sleep but to sleep, and there is no sleep in the sleep, and there is no sleep in the sleep, and the victim has been entering or coming into the house at all.”

(2) According to the medical certificate submitted by the defense counsel at the court of the trial, it is confirmed that there was chronic infections on the right edge of the defendant. However, at the time when Nonindicted 3 took the victim’s 201 from △△△△, and the defendant was viewed as the defendant, the defendant was able to take care of the victim, and the direction of the head and the opposite direction was the head of the bet and the opposite direction ( Nonindicted 3’s statement in the court of the trial). Thus, the left side of the defendant, who was honest, is likely to have been laid in the bet or bet.

(3) The Defendant was out of the entire pantyty on January 23, 2005, and was spanty body, so there is a high possibility that Nonindicted 3, when Nonindicted 3 entered the △△△△ 201, he would have done an act, such as shouldering the Defendant’s body if he was shouldered or broken.

However, Non-Indicted 3 took the portraits of △△△△△△△ 201 from △△△△△△, and the victim continued to enter △△△△ 201 and have continued to do so. However, even though the Defendant was only able to have been locked and did not take any action, such as continuing to do so (Evidence Nos. 20, 215, and Non-Indicted 3’s statement at the trial).

(4) Nonindicted 2, who drank together with the Defendant, stated that “The Defendant was not in the state of drinking at that time, and a little face was in the state of drinking with red,” (the trial record 172 pages).

However, in light of the fact that the Defendant was sleeped from the entire panty to the panty body, unlike the ordinary panty, there is a possibility that the Defendant was under the influence of alcohol at the time.

(5) Meanwhile, Nonindicted 2 made a statement at an investigative agency that “The Defendant sent a reply to the Defendant’s phone at around 10:00 on January 23, 2005, and dives dives dives dives dives dives dives dives dives. However, the Defendant did not go through his cell phone (Evidence No. 197, 198, 514, 515 pages),” and Nonindicted 2’s above statement, unlike the Defendant’s statement, should be deemed to have been broken by the Defendant prior to January 23, 2005.

However, at the court of the court below, Nonindicted 2, a defendant, stated in the court of the court below that "on January 23, 2005, the defendant, like the defendant's statement in an investigative agency, made a phone call other than his own mobile phone, but at that time, the defendant did not make a speech to the defendant, and only made a statement to the office," and reversed the part of the defendant's telephone call among the statements made in an investigative agency (the trial record 172 to 176 pages).

On the other hand, the Defendant, rather than around 10:00 on January 23, 2005, 15:00 on the same day, did not go through a phone call from Nonindicted 2 (portable phone number: telephone number 3 omitted) with his/her mobile phone, thereby attempting to put dives in the arms and selling mountain (Evidence No. 47 pages and trial records 176 pages).

Furthermore, according to the Defendant’s mobile phone call details, it is evident that the Defendant did not call Nonindicted 2’s cell phone to her cell phone on January 23, 2005, and there is no objective data such as Nonindicted 2’s call details (Evidence No. 47 pages) to support that Nonindicted 2 her phone was posted by any other means (Evidence No. 514 page of the Evidence No. 514 written as if there was a copy of Nonindicted 2’s cell phone call details before and after January 23, 2005, but the prosecutor only stated that there was a copy of Nonindicted 2’s cell phone call details from his written opinion on December 29, 2010 and that the part was wrong).

In light of these circumstances, unlike Non-Indicted 2’s statement, the Defendant’s statement is highly likely to not make a telephone call to Non-Indicted 2 around 10:00 on January 23, 2005, and only around 11:00 on the same day, it cannot be readily concluded that the Defendant’s statement was false.

(6) In full view of the above circumstances, the possibility that the Defendant, like the facts charged in the instant case, did not shoulder the Defendant’s sound entering △△△△△△△ 201, but, like the Defendant’s statement, the Defendant, like the Defendant’s statement, carried the drinking at around 03:0 on January 23, 2005, carried the drinking while drinking, and the Defendant was locked at around 11:00 on the same day, and the Defendant was sleeped, and the Defendant was sleeped, and the Defendant was sleeped, and the victim was coming into the house, or was coming into the house, cannot be ruled out.

If so, even if the victim was entered in △△△△△ 201, it is difficult to obtain a hot spring that the defendant who continued to have been a victim, was satisfeed immediately immediately after the defendant's death or assaulted the victim as stated in the facts charged in this case.

B) With respect to the movement, etc. of its goods by home.

(1) On January 23, 2005, the Defendant, around 16:00 on the day of the instant case, posted △△△△△△ Group 201 on the instant day with his own occupation, sports uniforms, etc., and took place at home. On January 24, 2005, around 01:00, the Defendant again posted △△△△△△△ Group 201 on the instant day with his own other things, such as clothes, and took place at home and her own main body.

The Defendant stated that “The Victim was promising the Victim to be a clerical error in the drinking place and did not contact without entering the house,” and that “The Victim was holding his own goods in △△△ 201 as above.”

In light of the fact that the defendant living together with the victim about two weeks, the defendant's above behavior cannot be understood entirely in light of the defendant's occupation and living circumstances.

(2) Rather, if the Defendant committed an offense identical to the facts charged in this case, which led to the death of the victim by murdering or assaulting the victim, it is difficult to readily understand that △△△△ 201 of the Defendant, immediately after the commission of the crime, carried his or her own goods, and carried out the above act as seen above. According to the facts charged in this case, the Defendant is intelligent and planned to the extent that he or she led the victim’s body and completely abandons the victim’s body, and it is difficult to readily understand that such Defendant’s act is likely to be suspected of being a criminal.

C) As to failure to contact the victim

(1) The Defendant stated that “Although △△△△△△△△ Party had an object, and did not keep the body or letter from the victim, the Defendant contacted the victim several times to the mobile phone, the victim did not receive the phone, and the victim took the text message toward the victim.”

(2) As seen earlier, both the Defendant and the victim’s cell phone were admitted to the SK Telecom. However, in the case of the SK Telecom, the absence of the phone does not appear in both the details of the phone call and the details of the reverse phone call. Therefore, it cannot be readily concluded that the Defendant did not intend to communicate with the victim on the ground that there was no cell phone call from the Defendant and the victim.

(3) The delivery of text messages must remain in the form of telephone communications, and the Defendant’s sending of text messages to the victim is nothing more than the currency content.

However, even though the Defendant made a statement or sent text messages in the process of emphasizing that he attempted to contact the victim at an investigative agency, the possibility that transmission was failed cannot be completely ruled out. Moreover, even if the Defendant’s statement is false, it cannot be said that it supports the facts charged in this case.

D) As to those for arms and legs, etc.

(1) On January 23, 2005, at around 15:00 on the day of the instant case, the Defendant called Nonindicted Party 2 to call the phone and called Nonindicted Party 2 to sell it. On the same day, around 18:00, Nonindicted Party 2, 9, and 18 et al. al. al., and the Defendant dived Nonindicted Party 2, 9, and 18 on the same day. On the same day, at around 23:00 on the same day after drinking the meal and drinking.

(2) If the Defendant had already deserted the body of the victim at the time of Nonindicted Party 2’s delivery, it was probable that Nonindicted Party 2 and the Defendant might have been abnormal in the clothes, pictures, or actions of the Defendant when he was playing in the place of his clothes, teas, or actions. Nonindicted Party 2 stated that “at the time of his delivery, there was no abnormal points in the clothes, pictures, or actions of the Defendant” (the trial record 173 pages).

If the Defendant had yet to abandon the victim’s body at the time of Nonindicted Party 2’s delivery, it is difficult to understand that the Defendant, who was in intelligence and planned, was not playing in the arms, mountain, etc. for five hours, while leaving the victim’s body in △△△△△ 201 by putting it off for five hours.

(3) Nonindicted 5 also stated that “The Defendant parked a vehicle in the △△△△△△ parking lot on January 24, 2005. The Defendant parked a vehicle subsequent to the vehicle of the Defendant, which was about 5 minutes after the Defendant’s parking, and the Defendant called the Defendant to get off the vehicle. When the Defendant was viewed as having deducted the vehicle, there was no abnormal error on the part of the Defendant.” (Evidence No. 348 pages and Nonindicted 5’s trial statement).

(4) As a result, the police tracked the Defendant’s cell phone location by February 7, 2005, the Defendant returned to and had the house of Non-Indicted 19 (the person who was dead before the Defendant was living with the victim) and did not particularly had the family (Evidence Records 599 pages).

E) Regarding China during the investigation

(1) The Defendant was investigated by the police as a suspect of a missing case against the victim. On April 13, 2005, when being investigated, the Defendant left China on April 13, 2005, and returned to Korea on March 1, 2010, and voluntarily attended the investigation agency.

(2) The Defendant consistently made a statement to this effect that “I think, after the lapse of time, that I would be able to get off the person who was missing, if I appear.”

(3) On February 17, 2005, the police already requested the Defendant to inspect a false horse detection device (Evidence No. 132 pages), so it is difficult to view that the Defendant was leaving a false horse detection device to escape.

Furthermore, if the defendant committed a crime expected to be severe punishment like the facts charged in this case, even if the period of the passport expires, it may continue to stay in China. However, in light of the fact that the defendant returned to Korea and voluntarily attended the investigation agency, the defendant's assertion that the defendant continued to be a suspected suspect in the investigation agency even though he did not commit the same crime as the facts charged in this case, and that he did not have any obvious way to disclose his confession, and thus, the defendant did not have to go to China in order to escape it. Thus, it is difficult to see that the circumstance that the defendant went to China during the investigation is supported by the facts charged in this case.

F) Regarding the motive, etc. of the crime

(1) On January 22, 2005, Non-Indicted 2 stated that “The Defendant made a statement to the effect that “The Defendant, from around 21:20 on January 22, 2005 to around 02:30 on January 23, 2005, she also made a phone call from the victim, she would be married to the other male and female at the time of drinking.”

However, it is difficult to see that only such motive alone had committed the same crime as the instant facts charged.

(2) On January 11, 2005, Non-Indicted 3 stated that “The injured party was faced with the accused to the extent that she could not work late at work due to snow,” and Non-Indicted 2 stated that “The Defendant had a written answer that she was a woman’s friend,” and Non-Indicted 3 stated that “The Defendant was a woman’s friend.”

However, even if the above statements by Nonindicted 3 and 2 were to be made, such circumstances cannot be said to directly support the facts charged of this case that the Defendant murdered, assaulted, and caused the death of the victim. Furthermore, the Defendant did not have any history of criminal punishment (Evidence No. 452 pages of the evidence record).

5) As to the abandonment of the body

The △△△△△△△△ in this case where the Defendant and the victim together reside is located on the road side of 8.5m wide (Evidence Record 366 pages), and on the first floor, parking lot facilities are installed and are easily exposed to the outside (Evidence Record 368 pages, on-site inspection records of this Court).

In light of the above circumstances, if the defendant abandons the victim's body with the full custody, it seems difficult to do so without the cooperation of another person.

However, as seen earlier, no trace of crime has been found as a result of the perception of car driving by the mother of the defendant or the defendant.

In addition, there is no evidence to recognize that the defendant had destroyed or deserted the victim's body because it is difficult for the defendant to fully abandon the victim's body.

In addition, as seen earlier, the police carried out real-time tracking of the Defendant’s cell phone location at the early stage of the investigation, but did not find any peculiar points, such as the time from the date of the instant facts charged to February 7, 2005, to which the Defendant was particularly suspicious.

4. Conclusion

The conviction in a false criminal trial ought to be based on evidence with probative value that leads a judge to feel true beyond a reasonable doubt. As such, even if the change of the defendant's appeal is unreasonable and the defendant's appeal is false, it cannot be made disadvantageous to the defendant. If there is no evidence with such probative value, even if there is no doubt as to the defendant's conviction, it shall be determined with the benefit of the defendant (see, e.g., Supreme Court Decisions 2005Do8675, Mar. 9, 2006; 2006Do1895, Jun. 30, 2006).

In this case, in light of the fact that the victim has been missing for more than six years, there is a very high probability that the victim had already died. However, considering all the evidence submitted by the prosecutor, it is insufficient to view that the fact that the victim has died was proven to the extent that there is no reasonable doubt.

Furthermore, considering the circumstances leading to Nonindicted 4, 5, and 6’s statements as seen earlier, the rationality and objective reasonableness of the details of the statement, objective circumstances before and after the instant case, and the Defendant’s actions, etc., the evidence submitted by the prosecutor alone is insufficient to deem that not only the primary facts charged that the Defendant murdered the victim, but also the ancillary facts charged that the Defendant committed the Defendant’s death by assaulting the victim to the extent that there is no reasonable doubt, and the facts charged that the Defendant abandoned the victim’s dead body are proven to the extent that there is no reasonable doubt.

Nevertheless, the court below found the Defendant guilty of the death of assault and the abandonment of the body. In so doing, the court below erred by misunderstanding the facts and adversely affecting the conclusion of the judgment.

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following decision shall be rendered again.

The summary of the facts charged in the instant case is as seen earlier. This constitutes a case where there is no proof of facts constituting the crime as seen above, and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced pursuant to Article 5

Judges Cho Sung-sung(Presiding Judge) (Presiding Judge)