(영문) 서울중앙지방법원 2018.2.9. 선고 2017고합1140 판결

The defendant is a foreigner of the Spanish nationality who is a Taekwondo criminal, and the victim C (the age of 25) was a third party of the defendant and a female-child of the defendant's children, and the defendant entered the Republic of Korea around July 19, 2017 to participate in "D' opened in the Pyeongtaek-gun of Gangwon-do from July 21, 2017 to February 24, 2017.

On July 24, 2017, around 06:00, the Defendant: (a) was friart 415 in Pyeongtaek-gun E in Gangwon-do; and (b) was friart 415 in the number of participants in the said Games; and (c) was fluent with the victim while the victim was accommodated in two rooms where the victim was under the influence of alcohol due to the lack of room compared to the number of participants in the said Games, and was fluent by using the gaps in which the victim was under the influence of alcohol, and inserted the Defendant’s fingers into the part of the victim’s drinking part. Accordingly, the Defendant was rape by taking advantage

2. Determination

A. Pursuant to Article 314 of the Criminal Procedure Act, in order to use the protocol under Article 312 of the same Act or the statement under Article 313 of the same Act as evidence, a person who needs to make a statement must be present at a public trial and make a statement due to death, illness, residence abroad, or any other cause, and the preparation of the statement or document must be made under particularly reliable circumstances.

First, the term "foreign residence" means that a person who needs to make a statement is in a foreign country. In the course of an investigation, the investigative agency shall hear the statement and confirm whether the person who has made the statement is residing in the foreign country and the possibility of future departure, and if it is probable that the person who has made the statement is unable to make a statement by attending the official judgment in the future due to such circumstances as his/her residence in the foreign country or his/her departure from the near future and staying in the near future for a long time, it shall be confirmed in advance the contact address of the person who made the statement, and the place and contact method of his/her stay at the time of his/her temporary return to Korea, if there is a possibility that the person who made the statement is unable to make the statement, and even after his/her departure from Korea, the method of making the person who has made the statement appear in the official judgment shall be sufficiently provided with an opportunity to make the statement, and even if there are considerable means, it shall be circumstances that make it impossible to have the person present in the court (see Supreme Court Decision 2007Do128, Feb. 28, 2007.

Secondly, the term "a particularly reliable state" in relation to the requirements refers to a state in which there is little room for false intervention in the preparation of a statement or protocol, and there is a specific and external circumstance that guarantees the credibility or voluntariness of the content of a statement. In addition, since such term "a particularly reliable state" falls under the requirement for admissibility of evidence, a prosecutor must specifically assert and prove the existence thereof (see, e.g., Supreme Court Decision 2012Do2937, Jul. 26, 2012). The proof should be limited to the extent that it is highly probable and reasonable to do so (see, e.g., Supreme Court Decision 2013Do12652, Feb. 21, 2014).

B. Direct evidence consistent with the facts charged in the instant case includes the victim’s accusation and the police statement of the victim (the written statement of the witness witness in Ghana refers to the statement concerning the victim’s and the criminal administration of the defendant after the occurrence of the case). Taking full account of the following circumstances acknowledged in the record of the aforementioned legal doctrine, the victim’s accusation, damage is the victim’s accusation, and the victim’s written statement.

Article 314 of the Criminal Procedure Act cannot be applied to the police protocol and the statement of reference witnesses, and there are no other circumstances to recognize admissibility of evidence, so it shall not be admitted as evidence.

1. The prosecutor entered the address of the victim’s agent’s Spanish office, the victim’s Spanish phone number and e-mail address in the written application for witness submitted on December 6, 2017, and the written opinion on the admissibility of evidence submitted on January 26, 2018 is under investigation by the Madrid court with respect to the defendant.

The e-mail of the victim’s agent (Spanish attorney) was attached. Accordingly, the prosecutor could request the victim to appear by informing the victim of the need for attendance by telephone, e-mail, etc., and there is no reason to deem the victim significantly difficult or impossible to make a statement by attending this court. Although the victim filed a complaint even though the investigation of the instant case is in progress in Spanish, there is no special reason to refuse the victim to attend and make a statement in this court. In light of the above, it is difficult to view that the victim’s accusation, the police statement of the victim, the police statement of the victim, falls under “when the person who needs to make a statement on the trial date cannot make a statement due to foreign residence, etc.,” and thus, it is difficult to view

② The victim made a statement to the effect that the Defendant, while playing the same sense as her fingers coming from the police, he/she did not extend clothes at the time when he/she took clothes. Meanwhile, the Defendant: (a) she took out the victim as G; (b) she took the victim to drink again after she went back to her room; (c) she took off her clothes with the victim’s consent; and (d) she took off her clothes with the victim’s consent; and (d) she was locked even after she was laid off her fingers after her show the shower. In light of the fact that the Defendant, around 02:38 on July 24, 2017, she made a statement to the effect that he/she did not appear to have been able to have confirmed the victim’s credibility, i.e., she did not appear to have been able to have verified the victim’s external phone number before her cross-examination; and (d) she did not appear to have been able to have any further confirmed the victim’s.

C. Therefore, the statements from the police of victims and witnesses cannot be used as evidence, and the evidence submitted by the prosecutor alone is insufficient to recognize that the defendant committed a crime as stated in the facts charged.

3. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of facts constituting the crime, and thus, the judgment of innocence is to be rendered in accordance with the latter part.