[1] The procedural requirements and the scope of the application of the procedure to enhance the credibility of a witness's statement confirming the criminal in the criminal identification procedure based on the suspect's appearance, etc.

[2] In a case where Party A, a robbery victim, was identified as Defendant as Defendant in the criminal identification procedure by an investigative agency, the case holding that Party A’s statement on a criminal category is below credibility due to the failure to abide by the procedure to enhance the credibility of Party A’s statement

[1] A witness’s statement in a criminal identification procedure based on the appearance, etc. of the suspect is low in credibility unless there are additional circumstances, such as the victim’s statement whether the suspect was aware of the suspect or not, and the suspect’s statement or description is recorded in advance in detail in order to enhance the credibility of witness’s statement in the criminal identification procedure, the witness’s statement or description should be applied to the criminal identification procedure to ensure that the witness’s statement or description on the suspect’s appearance, etc. is recorded in advance in detail, and the suspect’s identity should not face with the witness, and that the suspect and the suspect’s identity should not face with the witness in advance, and that the witness and the suspect’s identity should not be compared with the witness’s identity during the criminal identification procedure, and that the witness’s statement or description should be applied to the criminal identification procedure after the witness’s appearance, etc.

[2] In a case where a robbery victim Gap was identified as a criminal by an investigative agency as a criminal in the criminal identification procedure, the case holding that the police officer's statement about the criminal category is below credibility when comprehensively considering all the circumstances, including the following: (a) the police officer failed to properly observe the procedure to enhance the credibility of Gap's statement in criminal identification procedure by sending only one photograph of the defendant to Gap to a cell phone to confirm whether the defendant was a criminal; and (b) the police station also requested the defendant to confirm whether the defendant was a criminal in a mixed state; and (c) the defendant was at night at the time of the crime and was using his mother and child

[1] Articles 199 and 308 of the Criminal Procedure Act / [2] Article 33 of the Criminal Act, Articles 199, 308, and 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2007Do5201 Decided January 17, 2008 (Gong2008Sang, 264) Supreme Court Decision 2006Do2520 Decided July 10, 2008 (Gong2008Ha, 1191) Supreme Court Decision 2008Do1211 Decided June 11, 2009 (Gong2009Ha, 1166)

Defendant

Defendant

Kim Chang-hee et al.

Attorney Sung-sung

Daejeon District Court Decision 2012Gohap772, 2013Gohap11, 142 Decided May 30, 2013

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

Of the facts charged in the instant case, the robbery is acquitted.

1. Summary of grounds for appeal;

(a) misunderstanding of facts;

The judgment of the court below that found the Defendant guilty of this part of the facts charged, although the Defendant did not have taken the victim Nonindicted 1’s property by force, is erroneous and adversely affecting the conclusion of the

B. Unreasonable sentencing

The sentencing of the court below (two years of imprisonment) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. Facts charged

On July 16, 2012, the Defendant: (a) followed the victim non-indicted 1 (n), 22 years old; (b) tried to catch and cut off a bank that gets the shoulder of the victim; and (c) the Defendant 1 gets off and resisted the bank in order to prevent him from cutting off the bank; (d) the Defendant got off the bank so that he could not get the bank from cutting off; (b) the Defendant her resistance was cut down by cutting down the bank so that he can unbund the bank and cutting the victim beyond the bottom of the area; and (c) Nana, white aba (n.e., the amount equivalent to KRW 80,000), containing 20,000,000 won in cash owned by the victim.

B. The judgment of the court below

원심은 그 판시와 같은 사실 내지 사정들, 즉 ① 이 사건 강도 범행의 범인은 한남육교 노상에서 자전거를 타고 피해자를 뒤따라가서 피해자의 가방을 강취하였는데, 당시 육교 건너편에 있었던 공소외 2가 이를 목격하고 위 범행 장소로 달려오는 바람에, 범인이 육교 노상에 자전거를 버린 다음 육교 아래로 난 계단으로 뛰어 내려가 도주하였던 사실(증인 공소외 1의 증언, 증거기록 6, 9, 33쪽), ② 이 사건 현장에서 수거된 위 자전거 핸들에서 피고인의 DNA만이 검출되었던 사실(증거기록 17~19쪽), ③ 피해자는 이 사건 당일 경찰에서 “이 사건 당시 범인의 얼굴을 보았다.”고 하면서, 범인의 외모에 관하여 “30대 초반의 남자로서 보통 체격이고, 얼굴이 하얗고, 밋밋하게 생겼으며, 눈에 쌍꺼풀이 없었다.”고 진술하였고, 이는 피고인의 실제 외모와 상당히 일치하는 점(증거기록 10쪽), ④ 이후 피고인이 범인으로 지목된 뒤, 피해자는 수사기관 및 이 법정에 이르기까지 피고인의 얼굴을 확인한 다음 “피고인이 이 사건 강도 범행의 범인이 틀림없다.”고 일관되게 진술하고 있는 점(증인 공소외 1의 증언, 증거기록 25, 112쪽), ⑤ 이 사건 당시 육교 노상에는 가로등이 켜져 있어서 사람의 얼굴을 알아볼 수 있을 정도로 밝았고, 피해자와 범인 외에 다른 사람이 지나가지도 않았으므로 피해자가 범인을 식별하기 어려운 상황도 아니었던 점(증인 공소외 1의 증언, 증거기록 10쪽), ⑥ 피해자가 이 법정에서 “범인이 피해자의 가방을 잡아당겼을 때 범인의 얼굴을 또렷하게 보았다.”고 진술하고 있는 점 등을 종합하여 보면, 피고인이 이 사건 강도 범행을 저지른 사실을 충분히 인정할 수 있다고 판단하였다.

C. Judgment of the court below

(1) Relevant legal principles

A witness’s statement in a criminal identification procedure based on the appearance, etc. of the suspect should be deemed to have low credibility unless there exist additional circumstances, such as whether the suspect is aware of the victim or the victim’s statement or not, and if there are other circumstances to suspect the suspect as the offender, it should be deemed that the witness’s statement or description is recorded in advance in detail in order to enhance the credibility of the witness’s statement in the criminal identification procedure, and that the witness’s statement or description is also recorded in detail in the suspect’s appearance, and that it is possible for the witness to have the suspect identify the criminal under the specific circumstances, such as the limit and accuracy of the witness’s memory, and the possibility that the suspect or the person on his/her photograph is suspected of being the suspect as the offender, and that the witness’s statement in such a way should be applied in advance to 7 years after the witness identification procedures, including the suspect’s appearance, and that the witness and the suspect should also be applied to 10 days after the witness identification procedures.

The establishment of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value, which leads a judge to have such convictions as to the extent that there is no reasonable doubt. Thus, in a case where the prosecutor’s proof fails to sufficiently reach the extent that such convictions may lead to such convictions, the determination ought to be made in the interests of the defendant even if there is suspicion of guilts, such as the defendant’s assertion or defense is contradictory or uncomfortable (see Supreme Court Decision 2010Do1487, Apr. 28, 201).

(2) Facts of recognition

According to the records, the following facts are recognized.

① 피해자는 사건 당일 경찰에서 피해 경위에 대하여 진술하면서 범인의 인상착의에 관하여 “30대 초반의 남자로 키는 173cm 정도 되고, 보통 체격이며, 베이지색 계통의 모자를 착용하고, 초록색 반팔티에 베이지색 면바지를 입고 있었다. 범인의 얼굴을 보았는데 잘 기억이 나지 않으나 얼굴색이 하얗게 보였고 밋밋하게 생겼고 눈에 쌍꺼풀이 없었다.”고 진술하였다.

② On August 22, 2012, the police sent a video photograph of the Defendant’s resident registration to the victim’s cell phone to verify whether the Defendant was a criminal, and the victim stated to the effect that the Defendant’s photograph and the offender are the same.

③ The police arrested the Defendant to force the Defendant to commit the crime, but denied all the facts charged, and the police sent the Defendant’s photograph before the police station around December 2012 to the victim, and let the victim confirm whether the Defendant was a criminal. The victim stated that “The victim complies with the criminal.”

④ On December 11, 2012, the police officer, waiting in the statement recording room, had the victim confirm whether he/she is a criminal, and the victim stated “the criminal will be the criminal.”

(3) Determination

(A) Whether the criminal identification procedure is appropriate

① The police sent only one photograph of the Defendant to a cellular phone for the confirmation of whether the Defendant was a criminal, and thereafter, the police station also required the Defendant to confirm whether the Defendant was a criminal in a mixed state. Such statements by the victim who designated the Defendant as an offender are statements in the state of failure to properly observe the procedure to enhance credibility in the criminal identification procedure.

② 피해자는 최초에 피고인의 상반신 일부만이 촬영된 주민등록 화상사진을 보고 범인이 확실하다고 진술하였으나, 위 사진으로는 피고인의 체격을 확인할 수 없는데다, 얼굴이 하얗고 밋밋하며 눈에 쌍꺼풀이 없다는 정도의 인상착의는 다른 사람과 구분을 쉽게 지을 수 있게 하는 특별한 인상착의라고 보기는 어렵다.

③ There is no additional circumstance to grant credibility to a victim’s criminal identification, such as whether the Defendant was aware of the victim’s identity, and rather, he/she was her at night and used his/her mother at the time, and such circumstance is an obstacle to enhancing the credibility of the victim’s criminal identification statement.

(B) Determination of other evidence

In addition to the victim, a person who has directly observed the face of the offender was not identified, and found DNA type in the bicycle abandoned at the scene of the crime of this case (the defendant asserts that the defendant left the bicycle at the time of the crime scene and left the game in the PC room). The possibility that the criminal committed a crime by using the bicycle of the defendant cannot be ruled out.

(C) Sub-decisions

Examining the above circumstances in light of the legal principles as seen earlier, the victim’s statement, which is a direct evidence about the category of the offender, is below credibility and the remaining evidence submitted by the prosecutor alone is insufficient to acknowledge the facts charged. Therefore, this part of the facts charged cannot be deemed to have been proven beyond a reasonable doubt. Nevertheless, the lower court convicting the Defendant of this part of the facts charged, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below concerning robbery can no longer be maintained, since the ground for appeal of mistake of facts as to the robbery of the defendant has merit, and the court below rendered a single sentence on the ground that the crime in this part and the remaining criminal facts are concurrent crimes under the former part of Article 37 of the Criminal Act, and the judgment of the court

Therefore, without examining the defendant's assertion of unfair sentencing, the whole judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The criminal facts of the defendant's residential intrusion, theft, and embezzlement of stolen property and summary of evidence against the defendant are as stated in the corresponding column of the judgment of the court below.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 319(1) of the Criminal Act (Influences on Residence, Selection of Imprisonment), Article 329 of the Criminal Act (Influences on thiefs and Selection of Imprisonment), Article 360(1) of each Criminal Act (Influences on Residence and Embezzlement of Possession)

2. Aggravation for concurrent crimes;

Article 37 (Aggravation of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Crimes for Punishment for Theft with the most severe Punishment)

1. Scope of punishment: Imprisonment with prison labor for not more than nine years;

2. Application of the sentencing criteria;

【Offense subject to Sentencing】 Judgment of Theft

[Basic Crime] Theft

[Determination of Punishment] thief, thief for general property, 4th category (No. 2)

[Scope of Recommendation] Imprisonment of one year or more to two years and six months (Basic Area)

【Standards for Dealing with Multiple Crimes】

- The lower limit is based on the lower limit of the above sentence range (one year for imprisonment), since each possession of stolen property embezzlement is concurrent in holding that the sentencing criteria have not been set.

3. Determination of sentence;

The crime of this case was committed by the Defendant, even though the Defendant was punished for larcenys, etc. in the past, and theft of property by intrusion upon another person's residence, embezzlement of occupied objects, and the liability for the crime is not less than that of the crime. The damage caused by the crime of this case was not recovered, and the victims want to be punished by the Defendant is disadvantageous to the Defendant.

However, considering the fact that the amount of damage is relatively minor, the defendant's mistake is recognized and reflected, and all the sentencing conditions for the defendant shall be determined as per the disposition.

It is so decided as per Disposition for the above reasons.

Judges Lee Won-won (Presiding Judge)

1) Nonindicted 2 witnessed the situation of the crime, but only witnessed only the rear suplicity of the offender.

2) According to the sentencing guidelines, larceny by intrusion upon a person’s residence in cases other than night constitutes concurrent crimes with the crime of intrusion upon residence and the crime of larceny. However, it is classified as “influence theft” and is not treated as multiple crimes.