[1] The degree of probative value of evidence for the recognition of a crime in a criminal trial / In the case of a crime with heavy statutory penalty such as murder, whether a conviction may be found only by indirect evidence without direct evidence (affirmative), and the degree of proof of indirect facts, which is the premise of a major fact in

[2] Matters to be considered when recognizing the motive for committing murder solely on the grounds that a large amount of insurance proceeds is expected to be received / Cases where monetary gains can serve as the motive for committing murder

[3] In a case where the Defendant, after married the victim Gap, was charged with murdering Gap around the left-hand side of the cargo vehicle which was parked on the right-hand side of the side while driving on an expressway with a large amount of insurance money due to financial difficulties, after having subscribed to a large number of life insurance contracts with the insured Gap and the beneficiary Gap and the beneficiary Gap, the case holding that the court below erred in the misapprehension of legal principles, which found the Defendant guilty on the ground that the Defendant's intentional murder was proved to have been beyond reasonable doubt, and thus, it was guilty

[1] The recognition of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. As such, in a case where the prosecutor’s proof does not reach the extent that the defendant is able to have a conviction, even if there exist circumstances, such as the defendant’s assertion or defense contradictory or uncomfortable fear of guilt, it should be determined in the benefit of the defendant. Meanwhile, even in the case of a crime with heavy statutory penalty, such as murder, it may be found guilty only by indirect evidence without direct evidence. However, even in such a case, there should be proof to the extent that there is no reasonable doubt, and there should be no contradiction and conflict between them, and it should be supported by logical, empirical and scientific rules as well as logical and empirical rules. Therefore, the recognition of guilt should be more strongly proven in view of various indirect facts, such as the motive, method, selection of the crime, process leading to the crime, and the attitude of the defendant before and after the crime, and the defendant cannot be ruled out if there is no doubt that the defendant had a direct suspicion of the relationship with the crime.

[2] In general, it cannot be denied that the opportunity for pecuniary gain can be an important motive for committing murder. In particular, it is sufficiently acceptable in light of the empirical rule to the effect that an actor may be enticed to commit a criminal act in bad faith and anti-social, by acting as a more strong motive as much as benefits that the actor may gain. However, whether a motive for murder can be acknowledged solely on the grounds that the receipt of large-amount insurance proceeds is expected need to be examined more closely along with the degree of proof of other indirect facts.

Meanwhile, only pecuniary gain is a motive for committing murder in most cases where a criminal attempts to gather it even through the extreme method, such as murder, due to extremely imminent economic difficulties or brush situation, or where a criminal’s personality is brupted from the original point of view, or where there is a cruel and cruel motive for committing murder in most cases. Unless otherwise, monetary gain is likely to be acceptable as a motive for committing murder only in cases where there are circumstances where the external reason of murdering the victim, such as an drush or conflict between human relations, and at least monetary external reason, is deemed as a degree of brupting pecuniary gain. Furthermore, in cases where the other party is a spouse or a family member, the crime is planned to be committed in a manner contrary to the human body, and thus, the family relationship and blood relationship, which is one’s basis of living, are destroyed, and even if the other party is a spouse or a family member, there is a strong motive for committing murdering murder.

[3] The case holding that the court below erred by failing to exhaust all reasonable grounds or exceeding the bounds of the principle of free evaluation of evidence, and exceeding the bounds of the principle of free evaluation of evidence, in a case where the defendant was convicted of murdering around the left side of the cargo vehicle parked on the right side of the side while he was married with the victim Gap and the beneficiary Gap joined a large number of life insurance contracts with the insured Gap and the beneficiary as the defendant, and because economic situation is difficult, and was driving on the expressway for the purpose of receiving large amount of insurance money, and was charged around the part of the cargo vehicle stopped on the right side by intentionally drilling the front right side part of the cargo vehicle, which was parked on the right side, for the purpose of causing the murdering Gap, the court below erred by failing to exhaust all necessary questions or exceeding the bounds of the principle of free evaluation of evidence as to whether there was an indirect or circumstantial evidence sufficient enough to acknowledge the facts charged of murder, and by failing to exhaust all reasonable grounds or exceeding the bounds of the principle of free evaluation of evidence as to whether there was a sufficient motive to accept the defendant's motive for murdering method of crime.

[1] Article 27(4) of the Constitution, Article 250 of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act / [2] Article 250 of the Criminal Act, Article 308 of the Criminal Procedure Act / [3] Articles 13 and 250(1) of the Criminal Act, Articles 307, 308, and 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2011Do1902 Decided May 26, 2011 (Gong2011Ha, 1352), Supreme Court Decision 2012Do231 Decided June 28, 2012 (Gong2012Ha, 1367) (Gong2012Ha, 1367)

Defendant

Defendant

Law Firm LLC, Attorneys Lee Hong-hoon et al.

Daejeon High Court Decision 2015No358 decided January 13, 2017

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The recognition of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof does not reach the extent that it would lead to such conviction, even if there exist circumstances, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal, it should be determined in the benefit of the defendant (see, e.g., Supreme Court Decision 2012Do231, Jun. 28, 2012). Meanwhile, even in a case of a crime with heavy statutory penalty, such as murder, even if indirect evidence may be admitted without direct evidence, but even in such a case, the recognition of indirect facts constituting the premise of major facts ought to be proven to the extent that it does not allow any reasonable doubt. One of such indirect facts does not conflict with each other, and thus, it is not possible to reverse the principle of logic and empirical rule, and there is no room to deem the defendant guilty of the criminal facts in view of indirect evidence before and after the crime.

2. The lower court determined that all of the primary charges of this case, including the changed part in the lower court, were guilty on the grounds as indicated in its reasoning.

A. On January 21, 2008, the Defendant married with the victim of ○○○ Nationality (the 24 years of age). On June 20, 208, the Defendant intentionally purchased an insurance policy for the victim, the beneficiary, and the Korea-U.S. social I. on June 5, 2014, with the insured as the victim and the beneficiary as the Defendant, and, on June 5, 2014, with the insured’s death, up to 3.1 billion won of the death insurance premium, up to 2014, 11 insurance companies, such as Samsung Bio Bio (the 15-lane Office), Samsung Biobom and post offices, and 250 million won of the total amount of insurance premium for each of the above insurance contracts, the Defendant was unable to buy an insurance contract with the victim and the beneficiary at the right-hand side of 3.6 billion won of the 200 billion won of the 3-lane passenger vehicle, and thus, the Defendant was unable to buy the 3.606 billion won of the above insurance contract.

B. On August 23, 2014, the Defendant received an accident from the △ University Hospital located in the Dong-gu, Chungcheongnam-gu, Seoul Special Metropolitan City, to the effect that the traffic accident occurred to the customer center of Nonindicted Co. 2, Ltd. by telephone. Around August 29, 2014, the Defendant prepared and submitted a claim for insurance money to the insurance solicitors belonging to the said victim’s company to the said insurance solicitors around 29, 2014. However, the traffic accident was not caused by the Defendant’s negligence, not by the Defendant’s negligence, but by intentionally causing an accident. The Defendant, by deceiving the victim company, had the victim company pay the sum of KRW 10,757,440 from September 23, 2014 to December 2014, the Defendant paid the above amount equivalent to the above pecuniary profit by having the Defendant acquire the above monetary profit.

3. We examine the judgment of the court below in light of the aforementioned legal principles and records.

(a) objectively accepted facts, etc.;

Of the facts charged in the instant case, the following facts are objectively acknowledged based on the reasoning of the lower judgment and the evidence duly admitted. On August 23, 2014, at around 03:41, the Defendant died of the Defendant’s wife, who was on board the front right of the Defendant, at the five-lane 335.9km at a point below the 335.9km (sideway) drive by the Defendant on August 23, 2014, 68% of the front right of the 8t truck, who was standing on the right right side of the road, and 68% of the front right side of which the 68% of the knex, which the knex stife directly led to the knife’s loading of the truck, and then the knife f8% of the front right side of the knife knife knife knif on the front right side of the knif.

From the first stage of police investigation, the Defendant consistently asserted that it was caused by a sudden accident, and that it was not intended to kill the victim intentionally. The objective evidence to know the situation at the time of the accident lies only in the scene after the accident occurred, except the images taken out in CCTV installed at a rest area on an expressway opposite to the point where the accident occurred.

B. As to the motive for murder

1) The lower court: (a) did not always cause murder when the Defendant subscribed to a large number of insurance policies with which the victim was the insured; and (b) did not necessarily cause large amount of death insurance proceeds up to KRW 9.5 billion in the event of the victim’s death; (c) however, in the event where there are circumstances to deem that the instant accident was intentionally caused, it is insufficient to take the motive of murdering the victim according to social norms, regardless of the reason why the Defendant subscribed to the insurance, and whether the Defendant’s economic situation was lacking; and (d) determined that the aforementioned large amount of insurance

2) Generally, it cannot be denied that the opportunity for pecuniary gain can be an important motive for committing murder. In particular, it is sufficiently acceptable in light of the empirical rule to the effect that an actor may be enticed to commit a criminal act in bad faith and anti-social, by acting as a more strong motive as much as benefits he/she may obtain. However, as seen earlier, there are various circumstances that are difficult to readily conclude that the instant accident is a traffic accident intentionally induced, and thus, it is difficult to recognize the motive for murder solely on the grounds that the receipt of large-amount insurance proceeds is expected as stated in the holding of the lower court’s judgment, the lower court need to further closely examine the degree of proof of other indirect facts as grounds for the intentional accident along with the degree

3) Meanwhile, only pecuniary gain is the motive for committing murder in most cases where a criminal attempts to gather it even through a extreme method, such as murder, due to extreme economic difficulties or scambling situation, or where a criminal scamblings and cruels are committed from the original stage to the point of view. In other cases, monetary gain, which is a reason other than money for killing a victim, such as dives, conflicts with other human relations, or scambling, should be deemed as a motive for committing murder, and the degree of consent should be met only in cases where the criminal committed planned crimes and is a family member, such as his/her spouse, etc., is destroyed by family relationship and blood relationship, which is the basis of his/her livelihood, and thus, it would be an ordinary motive for committing murder, even if scambling the foundation of a family life.

4) However, in the instant case, according to the reasoning of the lower judgment and the evidence duly admitted, the following circumstances are not easily connected to the motive for committing the act of murdering wife in an old and planned manner.

① At the time of the instant accident, the Defendant maintained his/her assets in excess of his/her liabilities to a considerable degree, and there is no apparent circumstance that he/she was in charge of bonds or malicious debts that may be a financial problem. Notwithstanding the amount of sales reported by the Defendant on the value-added tax of household goods stores, the Defendant’s credit card sales of household goods store was merely an internal and external amount of less than 20% and most cash transactions were cash transactions were conducted. Although it was not good than the previous one at the time of the instant accident, the monthly income was at least KRW 900-10 million, and the monthly income was at least KRW 5 million, and there was no shortage to cover the insurance premium and living expenses for each month, other than the monthly income from household goods store, due to incidental income of KRW 5 million and KRW 120-1.5 million. Although the Defendant’s statement on the revenues was not consistent since the investigative agency’s statement on the revenues, the Defendant’s statement accords with the Defendant’s statement made by Nonindicted 3 or Nonindicted 300 million won and partial 40 million.

② There is no special circumstance to deem that the Defendant had a special demand for funds by investing a large amount of money in other businesses, etc. before and after the instant case on the record, or that there was no need to raise money in an imminent and urgent manner, such as entertainment expenses and gambling funds.

③ Although the sum of the insurance proceeds to be received by the Defendant due to the death of the victim was KRW 9.5 billion, the amount of KRW 5.4 billion is not a lump-sum payment, but a majority of the insurance policies to be received by the victim’s legal successors, rather than the Defendant alone. Moreover, the insurance policies to which the Defendant subscribed as the insured is not concentrated at the time of the instant accident, but only two cases married with the victim during the period from 2008 to 2014, which are less than three cases. Of note, the insurance policies aimed at ensuring the pure death of the victim are merely three cases. The rest of the insurance policies, other insurance accidents, such as death of disease, treatment of illness, surgery, cancer treatment, and denial, are also guaranteed or pension insurance, medical room insurance, etc. Furthermore, if the Defendant, other than the insurance policies that the victim recommended, was aware of the need to subscribe to the insurance policies by the Defendant as the insured, the Defendant’s spouse and 15.5.77 times of the instant accident, including the Defendant’s spouse and 5.

④ In light of the fact that the Defendant subscribed to insurance money with less than KRW 100,00 to KRW 600,500,000 and KRW 1 to 200,000,000, which was agreed upon by the victim, was less than KRW 42,70,000,000, which was purchased around June 200, KRW 276,600,000, and KRW 836,000,00, which was purchased around March 2013, and the time when the Defendant subscribed to insurance money was 60,000,000 to KRW 30,000,00,000, which was 40,000,000, more than KRW 60,000,00,00,000, which was 64,000,000,000,000.

⑤ Although the monthly insurance premium borne by the Defendant at the time of the instant accident in order to maintain the insurance contract in which the victim was the insured, the monthly insurance premium for the insurance contracts for which the Defendant and his/her other family members were the insured also reaches KRW 4 million at a similar level, the total monthly insurance premium paid for 800 to KRW 9 million. However, even if the Defendant had to pay monthly insurance premium after examining the details of deposits and withdrawals expressed in the Defendant’s account in the name of the Defendant during the period of maintaining each of the above insurance contracts since 2008, it is difficult to find out that there was any difficulty in cash flow, liquidity shortage, etc. to deem that the Defendant had any difficult economic pressure, and it is difficult to find out the circumstances where multiple insurance contracts were temporarily invalidated due to the failure to pay the insurance premium for the said period.

6) The Defendant held one deposit account in agricultural, forestry, credit unions, and post offices, and the total balance does not exceed 6 million won, and there was no other savings or financial means, such as installment savings, funds, etc., at all times. Instead, it appears that the Defendant used insurance as a means of financial transaction similar to deposits or installment savings by frequently using money as necessary, such as making a repayment of loans or continuing to accumulate insurance premiums, using the loan of insurance contract, premium withdrawal, etc. In short, it is difficult to view that the Defendant used insurance as a kind of asset management method, not only for pure accidents, diseases, or pension purposes, but also for saving some of the revenues and using it as a kind of asset management method for lending funds.

7) Although the Defendant and the victim were pregnant over two occasions, it appears that there was a reason to her own in her own. While the fetus was pregnant at the time of the instant accident, it appears that there was a conflict between the Defendant and the victim in her own pregnancy, it appears that the fetus was still pregnant at the time of the instant accident taking into account her pregnancy, it was decided to have given birth by having been born at a hospital, in particular, when the fetus was aware that she is a male baby, and the Defendant knew that the fetus was a male baby, and the Defendant did not have any specific problem with the Defendant, such as taking out two fetus insurance for the said baby around May 9, 2014. Meanwhile, there seems to have been a conflict between the Defendant and the victim in her mother living together with her mother in 2008 immediately after her marriage, it cannot be seen that there was no special circumstance to deem that there was a conflict between the Defendant and the victim in her family relationship with the Defendant and the victim.

8) Even based on the results of the Defendant’s intelligence test, psychological test, and the results of the risk of recidivism, it cannot be readily concluded that the Defendant revealed that there are psychological and emotional dangerous factors to prevent the Defendant from committing a homicide of the same type as the instant accident. Since the Defendant’s criminal records do not have any particular attention, it is difficult to conceal the Defendant’s criminality or reflect sociality.

5) In light of the aforementioned facts and circumstances, even if the Defendant was likely to receive large amount of insurance money due to the victim’s death, if the Defendant maintained a relatively smooth marital relationship for six years after the marriage in 2008 without any conflict, and maintained 3 years of age and left her married couple, and was aware that the pregnant fetus was her baby, including the former her baby, and if the Defendant was aware of the fact that the pregnant fetus was her baby, without any special economic situation, appears to have intentionally caused a motor vehicle collision and caused the murder of the victim for seven months of pregnancy with the fetus, the motive for the crime ought to be clearly expressed more clearly.

Therefore, the lower court, in addition to the circumstance that the Defendant was able to receive a large amount of insurance money at the time of the death of the victim, found that ① the reason or motive for the Defendant subscribed to insurance, in particular, the circumstance in which the Defendant subscribed to insurance, the victim, and his/her family members; ② whether the majority of the Defendant subscribed to insurance contracts and guarantees, etc. were clearly aware of the occurrence of an insured incident; ③ whether the insurance money to be reverted to the Defendant was able to cope with the burden in light of economic circumstances and circumstances, such as the details of actual revenues and living expenses of the Defendant; ④ whether the Defendant was able to manage the insurance money by concentrating the insurance money in light of ordinary means of savings, such as deposit and installment savings, and ④ on the other hand, on the one hand, the circumstance that the Defendant continuously subscribed to insurance, while paying the insurance premium, and the specific purpose of the funds prepared through this; ② how much the Defendant was able to determine how much he/she paid the insurance money for the purpose of performing the same savings function as deposits and installment savings excluding simple guarantee insurance; and how much the Defendant’s were excluding the total amount of the Defendant’s.

C. Regarding the selection of the method of crime

1) The lower court determined that the crime of the method such as the instant accident may not be deemed as significantly deviating from the common sense or it cannot be assessed as an exceptional in view of the fact that the victim’s death would result in the Defendant’s receipt of a large amount of death insurance proceeds, even in order to avoid the doubt of the insurance company paying the death insurance proceeds.

2) However, if the Defendant intended to murder the victim for the purpose of insurance proceeds, several methods of crime may have been taken. In such a case, the anticipated considerations should be able to achieve the result of the victim’s death definitely due to the crime, and, in particular, in a case where the Defendant intended to disguise the victim by traffic accident in the same way as this case, it is general to search the place or method of the crime in advance. Furthermore, it is not easy to present it in the process of the crime in which the Defendant intended to murder the victim for the purpose of insurance proceeds. In particular, it is difficult to select the method of crime with serious risk to the life or body of the Defendant, such as insurance proceeds, in particular, in the course of the crime of murder for the purpose of pecuniary gain, it is difficult to see the possibility of disguised the accident by taking into account the high risk of the occurrence of the crime. However, when the degree of risk to the Defendant himself is very serious, caution is required to conclude that such method of crime can be easily selected in light of empirical rule.

3) In that sense, the method of committing the instant crime is difficult to obtain from the empirical rule in light of the following various circumstances, which can be seen by the evidence duly admitted, and there is no part that is easily understood in terms of the empirical rule or logical consistency, as stated in the judgment of the court below, in view of the fact that the Defendant was at risk with a large amount of profit.

① The instant accident is a method of driving on an expressway at a speed of 60 to 70 km, and it is difficult to view that the Defendant’s planned plan to kill the victim as a method of committing the crime can easily be seen to have been driven in terms of forecast and control potential. Not only is it easy for anyone to accurately fit the rear part of a vehicle parked on the right side of the expressway while driving on an expressway with a speed of 60 to 70 km, but also is likely to cause a serious danger to the life or body of the Defendant’s own seat, even if her intention is provokinged on the right side of the expressway. Nevertheless, it cannot be said that the Defendant’s choice of the method of committing the instant accident is very exceptional. Although the victim’s death did not cause serious injury to the victim as a result of the instant accident, the objective degree of the instant crime cannot be assessed only by the objective method of the instant crime.

② The instant vehicle is a vehicle with a capacity of 2t to her weight. The instant vehicle is a vehicle with a capacity of 8t to be loaded with large cargo as an early storage place. At the time of the accident. The instant vehicle was loaded with daily necessities purchased on the south main seat and daily necessities for loading, so it seems difficult for the Defendant to easily measure the shock arising from collision with large cargo vehicles. Furthermore, due to the difference in the size and height of two vehicles, it is difficult for the Defendant to see the front part of the instant vehicle at a rapid speed below the cargo vehicle, and it is difficult to readily conclude that the instant vehicle was loaded on the front part of the front part and the front part of the instant vehicle to be loaded on the front part of the instant vehicle and the front part of the instant vehicle to be loaded on the front part of the instant vehicle, such as the front part and the front part of the instant vehicle to be loaded on the front part of the instant vehicle and the front part of the instant vehicle to be loaded on the front part of the instant vehicle, and then, it is difficult for the Defendant to see the front part of the instant vehicle with an accident.

③ At the time of the accident, the Defendant was driving, but the victim appears to have been milched behind the senior noble person. While she was making a strong progress to the extent that the victim would have died definitely, the Defendant was able to flickly and flickly in a fatal danger, and the degree of his flick will exceed the ordinary expectation.

④ The lower court determined to the effect that, if a person with driving experience is a person with the same conditions as in the instant case, only the victim is sacriffed, and that the Defendant is able to be able to survive. However, it is difficult to say that it is naturally recognized in light of the empirical rule that: (a) it is difficult to predict and control the subsequent circumstances in a variety of variables that may have an impact on vehicle collision; and (b) it is difficult to see that it would be difficult for the Defendant to safely sacrife without preserving her life in advance as it is difficult to estimate and control the final damage caused by collision; and (c) there is also no evidence to deem that the Defendant’s driving ability was sacriffed to the extent that it was well-founded to recognize the “ direct driving experience” cited by the lower court as the ground for confiscing the Defendant’s driving ability.

⑤ Even in cases where a person plans to kill a victim by disguised traffic accident, if the situation where a large-scale truck stops rapidly at a very remote place as in the instant accident, it is very exceptional that the method of commission of crime would lead to the occurrence of the instant accident and the commission of an appropriate place of crime while driving on an expressway to commit the crime. Even when considering the situation at the time of the accident, if the Defendant intentionally caused an accident, he/she should have discovered the instant truck parked on the side immediately before reaching the scene of the accident and make a reasonable judgment within a short time that does not lead to a single minute. This is too e.g., a method of crime in which a person intends to commit the instant accident.

(6) Although an investigative agency also endeavored to secure the proviso related to the planning and preparation of a crime through search and seizure of information media, such as Defendant’s criminal behaviors, Defendant and his/her family's know-how and cell phones, and search and seizure of criminal data on home and sales stores before and after the crime was committed, it seems that the investigation agency did not find out any trace, including the method of crime, of preparing for the crime or of studying

7. On the records, there is no other circumstance that the defendant carries sex that may cause an extreme risk to the extent that he/she causes an accident like this case, even if he/she takes risk to his/her own body or life.

4) 이와 같이 피고인이 이 사건에서 선택한 범행방법은 매우 짧은 시간에 범죄의 실행을 결단해야 하는 상황이고 추돌 대상 화물차량을 발견한 것도 상당히 우연적인 것으로 보이므로, 그럼에도 불구하고 피고인이 살인을 교통사고로 위장할 의도로 이 사건과 같은 범행방법을 선택하였다고 보려면, 원심으로서는 마땅히 ① 피고인의 운전 경력 내지 경험에 따른 운전 능력을 살피는 외에도 ② 피고인 운전의 이 사건 차량이 이 사건 화물차량을 비롯한 정차해 있는 대형 화물차량의 뒷부분을 시속 60~70km 정도의 속도를 유지하면서 정면 추돌할 경우 설령 조수석 쪽만 추돌하도록 조종한다고 하더라도 충돌 후 반동으로 차량이 튕겨 나가면서 운전자도 통제불능의 상태가 될 가능성은 없는지, ③ 이 사건 차량의 앞부분은 일반 승용차와는 그 구조가 상이하므로 화물차량을 추돌하였을 때 화물차량의 적재함 및 하부 구조물 아래로 파고 들어가는 정도 역시 다를 수밖에 없을 것으로 보이는데 그 차이는 어느 정도인지, ④ 이 사건 차량이 추돌한 것과 같은 대형 화물차량은 통상 다른 차량이 추돌하더라도 차량 하부 구조물 아래로 파고 들어와 끼이는 일이 발생하지 않도록 하는 철강 구조물을 설치해 두는 경우가 많음에도 불구하고, 이 사건과 같은 방식으로 추돌함으로써 조수석 쪽 탑승자만 치명적 피해를 입게 할 수 있다고 예측하고 범행을 감행하는 것이 능숙한 운전자라면 가능하다고 볼 수 있는지, ⑤ 피고인이 중한 상해의 위험에도 불구하고 살인의 의심을 피할 의도로 그러한 위험을 쉽게 감수할 정도로 무모한 성품 내지 성향의 보유자인지, ⑥ 피고인이 살인의 고의범으로서 이 사건에서와 같은 방법으로 범행을 하려고 하였다면 피해자와 함께 ◇◇에서 서울로 차량을 운전하여 갈 때나 서울에서 이 사건 사고 장소에 이를 때까지 여러 차례 정차 중인 화물차 등 대형차량을 물색하거나 범행을 시도하려고 하였을 가능성이 있으므로 확보 가능한 고속도로 CCTV영상 등에 그러한 흔적이 나타나는지 등에 관하여 좀 더 심리해 본 다음, 피고인을 기준으로 한 경험칙으로 볼 때 이 사건 사고가 선택 가능한 범행방법의 범주에 속하는지를 판단하였어야 할 것이다.

D. Regarding the situation before and after the accident

1) At the time of the instant accident, the lower court determined that: (a) at the time of the instant accident, ① the height, etc. of the instant vehicle was 422 meters near the point of the accident; (b) the truck’s vehicle went to the emergency stop zone near the entrance of the emergency stop zone where the vehicle stopped and went to the emergency stop zone, and then, (c) the vehicle finally sees the rear side of the instant vehicle by making the front direction (11%) to the front direction of the instant vehicle; (d) there was an artificial change from 6 parts to 4 parts to meet the speed of the instant vehicle at the time of the accident; (d) the instant vehicle at the point of the accident, having access to the point of the accident, was highly likely to cause the instant vehicle to run the brake system in light of road condition, etc.; and (e) the Defendant, without any specific motive and risk of the instant accident, intentionally asserted that it was difficult to deem the instant vehicle to have been able to have been acquired due to the instant accident.

2) However, in full view of the following circumstances revealed through the reasoning of the lower judgment and the evidence duly admitted, there is doubt as to whether all such indirect facts acknowledged by the lower court can be deemed proven, and further, it is difficult to readily conclude that the conclusion that the Defendant intentionally caused the instant accident by the indirect facts recognized by the lower court accords with the logical and empirical rules and accords with the scientific rules, as much as possible.

① Based on the results of various investigations and analyses regarding the instant accident revealed in the record, in order for the instant vehicle and freight vehicle to be the same form as the presumption location before and after the drilling and the wheels arrangement, the lower court determined to the effect that the instant vehicle to the effect that, in order for the instant vehicle and freight vehicle to be the same as the arrangement of the two wheels, the instant vehicle would have become the same from the point of accident to the point of accident at least 40 meters prior to and after the emergency stop at the point of accident, and the wheels toward the right angle toward the right angle to the right, and again, the operation of the steering gear in operation would not be possible while driving, and that, in order for the Defendant to look at the back of the freight vehicle intentionally at the point of accident, the vehicle after shocked according to the driver’s right angle in experience, etc. to ensure the safety of the Defendant, which is a dangerous driver, the driver of the instant vehicle, to be able to be able to go ahead of the driver’s seat, and that the operation of the steering gear would have led to the psychological motive.

However, such determination by the court below is not consistent with the movement of the instant vehicle, which was expressed in CCTV near the place where the instant accident occurred, which is the most important and objective evidence. Witnesses, including Nonindicted 15, 16, and 17, who presented an appraisal opinion on the cause of the instant accident, presented an opinion that the instant vehicle would be friendly immediately before the instant accident, on the ground that the change in the direction that light, such as the height of the instant vehicle, is cut off in the direction that is far from the fixed line of CCTV installed at the point where the instant accident occurred, is observed, on the ground that the rise of the instant vehicle, etc., would not be seen as any change in the direction of the CCTV, but any change in the direction toward the left side of the CCTV again after being able to be discovered, and such change in the direction to the left side of the CCTV would not be able to be able to be further clarified if it is based on the reasoning of the court below.

② On the basis of their analysis results in each investigation and trial process, Nonindicted 15 and Nonindicted 16 consistently presented their opinions that the instant vehicle’s way of proceeding would lead to the situation immediately preceding the conjection of the instant truck, which was presumed by the instant vehicle’s way of proceeding, in the vicinity of 40 meters prior to the point of the accident, and that the instant vehicle’s way of proceeding would lead to the situation immediately preceding the conjection of the instant truck, and that it would result in the instant vehicle’s final location after the collision. Nonindicted 17 also presented an opinion similar thereto. However, the lower court’s determination is based on some analysis results of the instant vehicle’s anticipated way of proceeding at the time of the accident. However, even if examining the record, there is no evidence supporting the foregoing reasoning of the lower court.

③ More than anything else, the aforementioned appraiser’s investigation and analysis results, and the court below’s reasoning revealed that, while checking the location and location of the instant vehicle at each point of time of the accident, it would be assumed that the situation at the time of the accident would have been reconstructed by coping with the movement of the instant vehicle at each point of time of the accident by responding to the actual location and time of the accident. In addition, it is unclear whether it can be readily determined that the accuracy could be objectively guaranteed within the range of error due to disregarding it, and it cannot be said that the CCTV at the time of the accident at the time of the accident and the CCTV at the time of the actual accident are completely consistent with the aforementioned presumption. Furthermore, Nonindicted 18 of the National Institute of Scientific Investigation, who was requested by the investigative agency to analyze and appraise the location, speed, and movement of the instant vehicle based on the CCTV at the time of the accident, attempted to improve the quality of the CCTV at the time of the accident, but the image itself could not clearly distinguish the movement of the instant vehicle from the maritime level and speed, and it could not clearly emphasize the location of the instant vehicle.

④ Meanwhile, as recognized by the lower court, there is considerable doubt that it is compatible with the fact that the upper level, etc. was set up immediately before the instant accident, and that it was close to the operation of a vehicle. However, it cannot be easily concluded that the Defendant’s act of ductal intent, which is incompatible with the driving of a vehicle, was involved solely on the ground that the Defendant’s act of ductal intent, which is incompatible with the driving of a vehicle, has been interfered with the fact that the continuous operation of the vehicle is not also impossible even when the operation of the vehicle is in a stroke or anti-disceptic state.

⑤ The possibility of operating the manual of the instant vehicle, which the lower court determined that it cannot be matched with driving, is unclear at any time, and it seems difficult to readily conclude that the CCTV image alone was a part of the appraiser’s opinion, and that it was through the operation of the manual without any theoretical room. In other words, unlike other experts, it is difficult for Nonindicted 18, who is an expert in video analysis, to determine whether the CCTV image “the front front front front front front present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present present situation, the state and speed of the accident site, or the combination of these causes present present present present present present present present present present present present present situation.

3) 결국 졸음운전으로는 이 사건 사고 발생 당시의 상황이 일어날 수 없다는 데 대하여 더욱 과학적이고 정밀한 분석이 뒷받침되지 않고는 이 사건 사고가 고의에 의한 교통사고라고 쉽게 속단할 수는 없어 보이므로, 원심으로서는 ① 졸음운전 중 운전자의 신체에 나타나는 반응과 그러한 반응이 운전자의 운전 기능 및 차량의 운행 상태에 미치는 영향, ② 졸음운전 중에는 상향등의 조작이 전혀 불가능한 것인지, ③ 졸다 깨다를 반복하는 중에 도로의 상황, 차선 등을 확인하기 위해 의식적으로 상향등을 조작한 뒤 다시 졸았을 가능성은 없는지, ④ 상향등을 켠 이후로도 20초 동안 약 422m를 더 진행한 후 사고가 발생하였으므로 그 시간과 거리는 의식적으로 상향등을 조작한 후 다시 가수면 상태로 들어가 졸음운전 사고를 일으킬 수 있는 정도인지, ⑤ 원심 판시와 같이 고의사고임을 전제로 비상정차대에 정차 중인 화물차량을 명확히 확인하기 위한 것이 아니라 단지 졸다 잠시 깬 상태에서 도로의 상황을 확인하기 위해 상향등을 켠 것이라면 당시 도로 및 차선의 밝기 등 제반 사정은 그러한 가능성을 뒷받침할 만한 것이었는지, ⑥ 순간적으로 졸다 깨기를 반복하는 졸음운전과 사고 장면 CCTV영상에서 확인되는 이 사건 차량의 진행 경로는 서로 양립할 수 없는 것인지 등에 관한 합리적인 의문을 해소한 이후에 상향등 점등 등 이 사건 차량의 운행 상태가 졸음운전과 양립할 수 없는 것인지 여부를 판단하였어야 할 것이다. 더하여 이 사건 사고 당시의 상황 등을 조사, 분석한 감정인들의 의견이 완전히 일치하는 것도 아니므로 감정인들이 견해 차이를 보이는 이유, 그것이 이 사건의 유·무죄를 가늠하는 핵심적인 것인지, 각자의 감정방법이 이 사건 사고 상황을 추측하는 데 타당한 방식이었는지, 그 전제로 삼은 조건들은 적절했는지 등에 관하여 감정인들이 한 자리에서 서로 각자의 견해를 개진하고 그 합리성 및 타당성을 검증하는 등으로 어느 감정의견이 더 과학적 신빙성이 있는지 밝혀보는 것도 필요하였던 것은 아닌지를 아울러 지적하여 둔다.

E. As to the detection of the WIG substance in the bloodstain

1) At the time of the instant accident, the lower court cited the following as indirect facts: (a) the victim’s bloodtain was discovered in the instant vehicle at the time of the instant accident; (b) the detection of DNA penthydroids, the substance of which was the bloodtains; and (c) the Defendant, only the Defendant at the time of the accident, worn the safety bell and the victim did not wear the safety belt at the time of the accident.

2) However, based on the fact that the WIG substance was detected in the bloodstaind in this case as stated in its holding, the lower court seems to have determined that the Defendant was presumed to have taken drugs on the pente spatitis in the vehicle in order to cause an accident in the victim’s waters. However, it is doubtful whether it can be determined in light of the following circumstances revealed by the evidence duly admitted.

① Although the lower court deemed that the blood trace buried on the part of the victim covered by the instant vehicle was the victim, it is difficult to readily conclude that the blood trace was the victim solely on the ground that the DNA was impossible to identify the blood trace buried on the instant vehicle, among the samples taken from the instant vehicle.

② The reason for determining that the DNA identification was impossible in the bloodtain of this case is that the blood trace was decomposed and the DNA was not secured. Since the victim’s DNA was identified in the bloodtain of glass windows that took place one month after the collection of samples was more than that of this case, it seems difficult to view that the blood trace of this case was at the time of the accident.

③ On the other hand, the victim’s bloodstaind DNA ingredients from the bloodstain of the glass window. However, it cannot be ruled out that the victim used the drug of other composite medication containing DNAs, not the water surface leading system, inasmuch as the body part in which the bloodstaind only performed a single analysis as the target drug by establishing only the DNAs, but did not perform a verification test as to whether other drugs are included. Thus, the possibility that the victim took the drug of other composite medication containing DNAs cannot be ruled out.

④ Moreover, it was determined that the blood trace buried in the upper margin of the instant vehicle was the Defendant. In addition, it was found that the DNA component was detected. As such, the temporary installation that the Defendant waldddddddddd the body guidance in the instant vehicle for the purpose of diving the victim with intent to cause an intentional accident is difficult to receive support any longer.

3) Therefore, the lower court should further examine the following: (a) there is any difference in the content of a drug that ordinarily takes in the general use of a composite and a single substance; (b) there is a drug that does not affect the fetus even if a pregnant woman in pregnancy 7 months has taken in the said drug; (c) there is no possibility that the Defendant and the victim would have taken such drug because the drug was discovered in the bloodtains of the Defendant and the victim; (iv) there is no possibility that the Defendant and the victim would have taken the drug; and (v) whether the drug containing the above substance would have the effect of inducing the water surface or whether the normal driving could be possible even if the drug was taken in the form of a drug that contains the above substance,

4) Meanwhile, the CCTV images at other locations marked by the Defendant when going to Seoul were not fastened with the safety level. At the time of the accident, it appears that only the Defendant did not fasten the safety level. However, there is no evidence suggesting that the Defendant released a part of the safety level between the Defendant and the victim at the time of the accident, and the victim is presumed to have been locked in the aftermath state at the time of the accident, and there is no possibility that the safety level was obstructed and the victim was unclaimed. Therefore, it is difficult to say that the fact that the Defendant did not fasten the safety level only at the time of the accident was intentional murder.

F. As to other incidental circumstances

1) The lower court determined that ① the instant vehicle was not scheduled to accompany the victim at the time of the instant accident to Seoul, but appears to have been accompanied by the Defendant, ② the Defendant, immediately after the instant accident, sent an attitude that did not have been fright to request rescue from the victim, such as not immediately requesting rescue from the victim to the truck driver, towing engineer, etc.; ② the hospital also made a false statement about the circumstances of the instant accident to the branch; ③ the Defendant requested the reservation for cremation of the body of the victim even in a sudden situation where the instant accident occurred on the day immediately before the instant accident occurred; ④ the Defendant replaced the cell phone two weeks prior to the instant accident; ④ searched the news related to the instant accident with the cell phone, and searched the contents of the article on several occasions; ⑤ the Defendant had a record of undergoing a abortion surgery over two occasions during the marriage, and the Defendant had the same attitude that the victim did not want birth to the pregnant fetus at the time of the instant accident, and determined that the instant accident constituted an indirect or mental reaction related to the instant accident.

2) However, insofar as a fundamental doubt as the Defendant’s motive for murder, selection of method of crime, and situation at the time of the occurrence of the accident is not resolved, it is difficult to view that the circumstance cited by the lower court as an incidental indirect fact to conceal intentionality was proven beyond a reasonable doubt that it is a traffic accident based on the criminal intent of murder, which serves as the premise for the recognition of the primary facts charged in the instant case.

4. According to the above review, there was some points to suspect the intention of the vehicle operation method of the instant vehicle driven by the Defendant at the time of the instant accident, and the Defendant’s explanation as to the situation at the time was pointed out by the lower court. However, insofar as the prosecutor bears the burden of proof as to the facts charged in a criminal trial, the Defendant cannot be found guilty of the facts charged of murder without any objective evidence and the support of a thorough argument based on the objective evidence and its reasoning. However, in a situation where it cannot be said that the truth cannot be said to be true, the principle of “the interest of the Defendant” is more meaningful between this net times. The doubt that the instant accident is for intentional murder solely on the basis of the indirect facts cited by the lower court has a lack of doubt.

Ultimately, in the instant case where there is no objective evidence to determine whether it is a stroke driving or an intentional accident, there is a lot of parts to be deliberated and confirmed more closely, if there is an indirect or circumstantial evidence to such a degree that it is sufficient to establish the existence of a murder among the primary facts charged in the instant case, or such evidence alone has a comprehensive probative value to recognize the existence of a murder among the primary facts charged in the instant case.

Nevertheless, the lower court found the Defendant guilty on the ground that the primary facts charged in the instant case, which the Defendant intentionally killed a victim, was proven beyond a reasonable doubt, without thoroughly and thoroughly verifying whether the Defendant sufficiently acceptable motive for murder exists, whether there was any special circumstance to resolve the doubt that may arise in connection with the selection of the method of crime, and whether there was sufficient scientific basis that the situation at the time of the accident occurred intentionally. In so doing, the lower court erred by misapprehending the legal doctrine on the degree of proof required in a criminal trial, failing to exhaust all necessary deliberations, or exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby adversely affecting the conclusion of the judgment.

5. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)