Where a minor victim makes a statement that he/she has suffered a sex offense from his/her relatives in the position to protect and supervise him/her, it shall not be rejected without permission therefor / Where a minor victim who has suffered a sex offense by blood relatives reverses his/her statement to an investigation agency in the court, standards for determining which credibility exists in the statement

When a minor victim makes a statement that he/she had suffered a sex offense, such as rape or indecent act by compulsion, from his/her relatives in the position to protect and supervise him/her, the credibility of the statement shall not be dismissed without permission, in cases where the victim, even though he/she knows that there was no witness, other physical evidence or direct witness than his/her own statement, has clarified the fact of harm done by himself/herself at the risk of criminal punishment of his/her guardian, and where the motive or reason for making a false statement is not clearly revealed, and the contents of the statement are factual, specific, consistent, consistent, and are not contradictory in light of the empirical rule.

In particular, given that the statements made by a minor victim who was a sexual crime by blood has such special characteristics as to be reversed or unclear due to the double appraisal of the defendant, the continuance of a meeting and pressure of his/her family members, etc., in cases where the victim reverses the statements made by an investigative agency in the court, it should be carefully determined whether the contents of the statements made by the investigative agency are reliable or not, and the motive, reason, circumstance, etc. of the reversal of the statements made by the investigative agency should be sufficiently examined

Article 298 of the Criminal Act; Articles 5(2) and 7(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 7(2)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 308 of the Criminal Procedure Act

Supreme Court Decision 2006Do3830 Decided October 26, 2006 Supreme Court Decision 2010Do11943 Decided November 25, 2010

Defendant

Defendant

Attorney Ha Man-young

Seoul High Court Decision 2019No630, 2019No44, 2019No19 decided January 30, 2020

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent act by force against minors under the age of 13), and the violation of the Act on the Protection of Children and Juveniles

A. Articles 307(1) and 308 of the Criminal Procedure Act provide that fact-finding shall be based on evidence, and the probative value of evidence shall be based on the discretion of the judge. This means that a judge’s acceptance and use of necessary evidence and evaluation of the substantial value of evidence among the admissible evidence belongs to the judge’s free evaluation of evidence. Therefore, insofar as it is not contrary to logical and empirical rules by rejecting sufficient probative evidence without any reasonable ground or by adopting and using evidence clearly contrary to objective facts without any reasonable ground, a judge may recognize facts by adopting free evaluation of evidence (see, e.g., Supreme Court en banc Decision 2013Do11650, Aug. 20, 2015).

Meanwhile, in determining the credibility of a statement where a minor victim made a statement that he/she had suffered a sex offense, such as rape or indecent act by force, from his/her relatives in the position to protect and supervise him/her, the victim’s statement shall not be dismissed without permission, in cases where the victim, despite being aware of the absence of physical evidence or direct witness in addition to his/her own statement, expresses the victim’s motive or reason at the risk of criminal punishment of his/her guardian, and does not clearly reveal the motive or reason to make the statement falsely, and where the contents of the statement are factual, concrete, consistent, and are not inconsistent, and there is no unreasonable or contradictory part in light of the empirical rule (see, e.g., Supreme Court Decisions 2006Do3830, Oct. 26, 2006; 2010Do11943, Nov. 25, 2010).

In particular, given that the statements made by a minor victim who was a sexual crime by blood has such special characteristics as to be reversed or unclear due to the double appraisal of the defendant, the continuance of a meeting and pressure of his family members, etc., in a case where the victim reverses the statements made by an investigative agency in the court, it should be carefully determined whether the contents of the statements made by the investigative agency are reliable or not, and the motive, reason, circumstance, etc. of the reversal of the statements made by the investigative agency should be sufficiently examined to determine

B. Summary of the facts charged and judgment of the first instance court

1) The summary of this part of the facts charged is as follows.

A) The Defendant, at the time of the end of the week of the Defendant’s residence in 2014, reported that the victim who is his father (at the time between 9-10 years of age) was able to take part in the inside room at the time of the Defendant’s residence, and committed an indecent act by force against the victim under 13 years of age, who was her blood relative by inserting his hand into the victim’s clothes, and making him her talk with him.

B) In 2017, the Defendant covered the victim (at the age of 13 at the same time) who was able to take part in the inside at the same time at the night of the day and night on the day of 2017, covered the victim’s cover with the victim’s cover, and added the chest and the sound into the victim’s drinking part, and inserted the finger and finger into the victim’s drinking part.

C) On March 1, 2018, the Defendant demanded the victim (at that time, 13 years of age) who was in a room in the ward to be fright by taking the Defendant’s hair out of the way to conduct the Defendant’s hair, and then the victim was unable to have the victim because the victim said, “I .......”, the victim’s massage and she was able to go back to the room, and then put the chest and the sound into a sound book by inserting his hand into the victim’s clothes.

2) In light of the following circumstances, the first instance court rendered a not guilty verdict on this part of the facts charged on the ground that the victim’s statement to the investigation agency, the only direct evidence consistent with the facts charged, is difficult to believe and the remaining evidence alone is insufficient to recognize the facts charged.

A) In the court, the victim reversed the statement to the effect that “no fact has been damaged by the defendant,” and directly prepared and submitted a statement to the court that “the statement made by the investigative agency is false, and the defendant sent the fact of false damage because it is too poor.”

B) Even if the mother and mother of the victim were omitted, the investigative agency and the court consistently make a statement to the effect that “the Defendant is not a person who commits the same crime as the facts charged in light of the Defendant’s usual tendency, relationship with the victim, etc.”

C) The Defendant consistently denies the facts charged to investigative agencies and courts until they reach the court.

C. Judgment of the court below

1) The lower court, by examining the victim as a witness the body and doctor of the hospital hospitalized at the time of the victim’s statement in the first instance court, conducted additional hearings as to the background leading up to the reversal of the victim’s statement, and conducted a new examination of evidence once the victim’s video CDs recorded the victim’s statement in an investigative agency in the court for viewing by reproducing them in the court.

2) The lower court determined, based on the foregoing results of the hearing, that the victim’s statement to the investigative agency on the following grounds could be recognized as credibility.

A) On April 3, 2018, the victim appeared at the ○○○○○○○○○○, and made a statement on the content of damage. The victim’s statements are as follows: (a) specifically specify the conversation with the Defendant at the time of the crime; (b) directly express the appraisal that occurred at the time of the crime; (c) express the detailed information on surrounding circumstances; (d) include the circumstances in which the victim made a statement; and (e) overcome the limitation of his/her memory or overcoming the guide of the investigator’s question.

B) In addition, the victim’s statement contains the features appearing when making a true statement as to the actual experience as seen above, it is difficult to find out the parts inconsistent or unreasonable in light of the empirical rule among the contents of the statement, and the victim assumes the fact of damage not actually experienced in order to mislead the Defendant, and does not clearly reveal the motive or reason of the victim’s statement.

C) At the request of the ○○○○○○○○○○○○○○○○○, an expert in the analysis of sexual violence against children and persons with disabilities who analyzed the statements made by the victim’s investigative agency and presented his/her opinion that “The possibility of occurrence of a case is higher than the possibility of relatively false statements, considering the victim’s unique and distinctive statements that are difficult to appear in the victim’s approximate statements, such as the victim’s appearance of false and distinctive statements in the victim’s approximate statements

D) In the first instance trial, the counselor who had provided psychological counseling five times with the victim stated to the effect that “the victim appeared to have a large portion of the symptoms after stressed stressed symptoms occurring in sexual assault.”

E) On March 2018, the victim talked about the fact that an indecent act was committed against a police officer at the end of March 2018, and then talked about it to the counseling teacher at the end of March 2018, and the counseling teacher notified the content of the damage by telephone to the specialized child protection agency. The counselor at the specialized child protection agency, together with a female police officer, met the victim at the school or specific damage details, and determined that the victim was credibility at the end of the victim, and entered the protection facility and started the investigation into the Defendant. The details and process of the commencement of the investigation against the Defendant do not seem to be

3) Meanwhile, in full view of the following circumstances, the lower court determined that the credibility of the statement made by the investigative agency cannot be rejected solely on the basis of the following: (a) it is difficult for the victim to believe that the statement reversed at the first instance court and the lower court court’s court’s court

A) In the first instance trial, the counselor stated to the effect that “The victim’s statement at the court of first instance on November 15, 2018 was false and the victim’s statement was made at the hospital where the victim was hospitalized,” and that “The counselor asked the victim in face-to-face consultation on December 5, 2018 and December 8, 2018, and then confirmed that the victim was the victim.”

B) From November 6, 2018, the mental and medical doctor of a hospital where the victim was hospitalized and received treatment from the victim from around November 6, 2018 stated in the court below that “no such statement was made to the effect that the victim would have made it said that the victim would not have any her mother at the time of asking the victim for the sexual assault.” “At the time of the interview on November 22, 2018, the victim had many family members brut at the time of the interview, and his father wanted to immediately take out, and the mother would have re-written whether the victim was sexual assaulted, and that the mother would not be able to believe that it would be difficult to do so.” Such statement is consistent with the reasonableness of the content of testimony, the witness’s interest in testimony, the relationship between the defendant and the defendant, and the credibility of evidence and evidence.”

C) On October 16, 2018, the victim sent the victim’s school-friendly relationship with the victim “if the victim was sexual assaulted against the victim,” and “I am Kakao Stockholm messages to the victim’s school-friendly relationship.” If the victim did not have suffered the same damage as indicated in the facts charged, I cannot accept the reasons for sending the above message to the victim’s school-friendly relationship.

D) The mother of the victim and the wife of the Defendant, who had been detained from August 2, 2018, stated to the effect that “the victim would have expressed his or her opinion because he or she had asked to do so by giving him or her,” and that “the victim would have been able to do so by giving him or her a request.” There seems to be probable that the victim would have reconvened his or her statement in the court after hearing the foregoing talk from her mother.

D. Supreme Court Decision

As above, the court below reversed the judgment of the court of first instance that judged otherwise on the ground that the victim’s statement reconcepted to the investigative agency’s statement itself and its evaluation, etc. were added to the motive, circumstance, etc. that the victim reconcepted the victim’s statement in the court, and in light of the motive, circumstance, etc. that the victim reconcepted the victim’s statement in the court, the court below reversed the judgment of the court of first instance and convicted all the charges. Examining the reasoning of the judgment below in light of the relevant legal principles and evidence duly admitted, the above judgment of the court below is just, and it did not err by failing to exhaust all necessary deliberations or by exceeding the bounds of the

2. On the part of the employment restriction order

The lower court ordered the Defendant to place an employment restriction at a child or juvenile-related institution, child-related institution, and welfare facility for disabled persons for two years. Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by infringing on the Defendant’s interest in the instance and the right to trial

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)