Defendant

Defendant

Kim Sung-il

Attorney Shin Young-cheon

Busan District Court Decision 2007Gohap164 Decided February 1, 2008

1. The judgment below is reversed.

2. The defendant is innocent;

3. The summary of the judgment of innocence against the defendant shall be published;

1. Summary of grounds for appeal;

The Defendant did not have committed any indecent act against the victim on the date and time indicated in the facts charged, and only took place at the same time. However, the police followed the Defendant’s house and left the Defendant’s house near the Defendant’s house and the young male who was young at the Defendant’s house only listens to the Defendant’s house, and found the Defendant’s house as the Defendant’s house and the Defendant as the offender, thereby causing the victim to mislead the Defendant as the offender. Therefore, even if the victim’s statement and the police officer’s credibility cannot be acknowledged, the lower court erred by misapprehending the remainder of the facts that found the credibility of the statement.

2. Summary of the facts charged

At around 04:30 on November 4, 2007, the defendant found that the victim non-indicted 1 (the victim non-indicted 24 years old) walked in front of the office of ○○ Dong located in Busan (hereinafter omitted), and followed by which the victim 1 (the victim's non-indicted 24 years old) boomed the victim's resistance by putting his hand into the victim's booms, putting him down the chest into the ground floor, pressing the victim's resistance, putting him down his breast and shoulder on the part of the victim's body, putting the victim's legs and shoulder on both sides, and drinking the victim's bridge with the victim's upper right side, and caused the victim to commit an indecent act by force, and thereby getting the victim to sleep the victim's boom, with the right side of 1 week medical treatment.

3. Facts of recognition;

Comprehensively taking account of the evidence duly adopted and examined by the court below, the following facts may be recognized:

A. At around 04:30 on the day of the instant case, the victim was congested in front of the 00-dong residents' self-governing center (Dong office omitted) located in the same (number omitted) in order for him to return home in Busan (hereinafter omitted), and later, the victim was able to walk his breast by inserting two fingers between the victim's winter and his mother at the place below the street, etc. where he turned on by using the victim's winter, and the victim was able to walk up the breast at the lower place below the street, etc., and the victim was able to walk up his breast and shoulder by pusheding the victim's breast and shoulder to the body of his mother and shoulder, coming up with the victim's a bridge, coming up with the victim's walk and the mother of the victim's body, coming up to the direction of the fire-fighting center at the point where the fire-fighting center was 20 meters away (hereinafter referred to as "the fire-fighting center at the right side of the case").

B. The victim gets away from the offender, Nonindicted 2 driven by Nonindicted 3, who was on patrol by Nonindicted 3, who was on patrol by Nonindicted 3 while on patrol, was on the duty of driving a police vehicle at a point where it falls short of the above distance, and reported the fact of damage to the police officer, and reported the fact of damage to the police officer, and led him to track the offender.

C. The police officers discovered a criminal who runs away at approximately 50 meters from the instant fire-fighting road, as the victim's height, coming to the direction of the police, and moved to the police lane. The criminal was set at a distance of about 20 meters from the beginning of the instant fire-fighting road to the right edge of a small alley (hereinafter "the instant runway") located at a distance of about 195 meters from the front side of the instant runway, and went to the direction of the police road at approximately 3 seconds. However, the criminal was not found.

D. The alley of this case is a dead-end road, where the instant alleys are located on the right side at the entrance of the entrance, with only one left side, and a fence of approximately 1.5 meters high is obstructed at the end of the dead-end part, and the upper part is installed with a decline.

E. Nonindicted 3, the main owner of the house located inside the right side of the instant runway and asked his wife, who is Nonindicted 4(57) and his wife, who reside in the first floor. As a result, on the second floor, two women are living in the military service. On the second floor, two women are living in the old house, only the old father are living in the upper part, and on the right side house (hereinafter “instant house”), only the old father is living in the upper part and his children live in Seoul. On the second floor, Nonindicted 3 stated that they live in the lower part, and that they live together with the young son and her mother.

F. The instant housing is located at a corner plucking, plucking, etc. of the instant alley road from the instant fire-fighting road, and the entrance to the first floor is facing the instant alley road. However, the entrance to the second floor is facing the instant alley road, and the Defendant, parents, and female students reside on the second floor.

G. In order to confirm whether a young male who was residing in the second floor of the instant house is the criminal, Nonindicted 3 respondeded to the question as to the early string of the second floor entrance, the father, Nonindicted 5, and the father of the Defendant 5, and the son were in the second floor, and the son was in the house. Accordingly, Nonindicted 3 was tracking the criminal, and the son was in the track, so that the son’s face can be confirmed. However, the son was her, with the consent of Nonindicted 5, and the son went into the Defendant’s room.

H. When Non-Indicted 3 and Non-Indicted 2 entered the Defendant’s room, the Defendant was arrested the Defendant, i.e., her mother, she was living together with his/her clothes, she was frighted with his/her clothes, she was frightened with his/her hair, covered with his/her mouths, she was locked, and she was locked. The method was the mother of the fast-free boxing, the fright green cap and the brightness of his/her color system. However, the police officer asked him/her about whether he/she was the Defendant after waiting the victim who was waiting before her house and asked him/her about whether he/she was the Defendant.

4. Determination

A. In order to evaluate that the credibility of the victim's statement or description in the criminal identification procedure by the appearance, appearance, etc. of the suspect is high, the victim's statement or description as to the offender's appearance, etc. shall be recorded in detail in advance, and the suspect, including the suspect, shall be allowed to be identified at the same time with several persons similar to the suspect, and the victim shall not have any contact with the suspect in advance, and the suspect and the victim shall not be allowed to have any contact with the suspect in advance, and the face-to-face process and result shall be taken in writing so that the value of evidence can be assessed later, and the suspect shall be allowed to hear the victim's voice independently or only with the suspect in the criminal identification procedure. In addition, it is dangerous that the victim's statement in the criminal identification procedure may reduce the victim's malicious cancer that the suspect is suspected of being a criminal under the limit and accuracy of the person's memory and concrete circumstances. Thus, the victim's statement in such a method shall be deemed to exist in addition to 208, if the suspect and the suspect have no other circumstances exist.

B. In full view of the evidence duly admitted and examined by the court below, the following facts can be recognized.

(1) Summary of the victim's statement

The victim made the following statements at the prosecutor's office, the court below, and the court of the party.

(A) On the top of △△△ Group, which is frightened by street, etc., scambling the offender’s face at one time, scambling the offender’s face at the center of ○○ Dong, and scambling the offender, and scambling the offender. The offender followed the offender, scambling the offender, scambling him, scaming him, scaming him, scaming him, and scam back on his body, and scam back the offender’s face, and then scam the offender’s face at the same time when scambling the offender’s face. All of the front of △△△△△△△ and the place of crime were able to see that the street, etc. turn on the offender’s face.

(B) immediately after the commission of the crime, the police officer stated that the police officer was her mother at the time of driving away the offender on board the police vehicle, her mother and her flab, and her flab, and that the police officer was an intermediary to raise the offender.

(C) Upon receipt of a police officer’s request for confirmation, the Defendant went into the Defendant’s room, and the Defendant left the Defendant’s room. The Defendant left the Defendant off and left the mar and retail-free marbing box, leaving the mar and sarb, and sarbing the sar and sarb, and saring the sar and sarb, and immediately told the police officer to do so.

(2) Summary of Nonindicted 3’s statement

(A) According to the “on-site departure report” written by Nonindicted 3 on the day of the instant case, since the Defendant entered the room of the Defendant, the Defendant was able to cover and take a string so that the Defendant was able to wear the clothes and the horses, and the Defendant was able to see it. However, the victim met with the Defendant’s room and met with the victim, and then the victim asked the victim “whether he or she is a person?” Then, the Defendant again asked the victim at the time of the Defendant’s uniform and asked him to the effect that he or she is also the offender, and the Defendant is arrested.

(B) Furthermore, according to the “Investigation Report” prepared by Nonindicted 3 on the day of the instant case, at the time when she gets on the instant fire-fighting road, her mother and her mother was frightened, and she was frightened with both the upper and lower sides. The Defendant’s body was frighted in the Defendant’s room, and the Defendant’s body was frightened in the Defendant’s shoulder and her upper part of the clothes, and the her part, such as the upper part, was dried, and she was dried with the upper part of the clothes, and she was frightd with the upper part of the clothes, and she did not appear to have been frightd for a few times, with she was frightened with the Defendant’s face when she was the offender, and the victim was frighted with the Defendant’s appearance, and was frightd with the Defendant’s appearance, and was frightd with the Defendant’s mind.

(C) At the time of Non-Indicted 3’s call with the prosecutor’s office and the court below’s decision, at the time of carrying the victim on the police, he was found to have suffered from the victim a strike without retailing the fear that the victim gets her mother and her mother and her awareness, and it was not visible that the defendant was dead on the alleyway due to the instant alley, and thus, it was judged that the defendant was dead on the house of the said alley. At the time of entering the defendant’s room, the defendant was living in the house of the said alley. At the time of coming into the room, the defendant was her head, and the defendant was able to take her her head, and the two her her son was frighted, and the victim was immediately the defendant was her, and the victim was her at the time when the defendant was found to have been deprived of her her awareness, and the defendant was unable to take the entrance before his house.

(3) Summary of Nonindicted 2’s statement

At the court of the trial, Nonindicted Party 2 tried to look at the wall that is located in the other part of the frame of the instant alley, without seeing that the wall was frightened, and did not look at it. Nonindicted Party 2 took the police vehicle and returned to the wheels who was around the instant alley road. As it is impossible to find a criminal, Nonindicted Party 2 told that he was young children at the Defendant’s house by opening the entrance, and 5-10 minutes after the beginning of the race, and sent the door to the Defendant’s house. Nonindicted Party 2 viewed that he was the same as the criminal, even though he was frightened at the time when he was frightening the criminal.

C. However, according to the records, the following circumstances are also acknowledged.

(1) The Defendant stated that, at around 22:00, the Defendant drinked alcoholic beverages at the window located in Sin-gu and Man-gu and Busan, from the 22:00 to the 01:40 of the day of the instant case, Nonindicted 6 was a substitute driver, she was a substitute driver, she was getting off from 02:40 to the 01:40 of the day of the instant case, and she was unable to get out of 02:40, while she was working in the house, she was out of her mother and crowdfunding, and she was out of the 02:40, and she was able to get out of the bar by wearing the rest of the clothes and scambling.

In fact, at around 01:43 on the day of the instant case, it is confirmed that Nonindicted 6 paid 27,000 won with his credit card from the swimming point of 01:43 on the day of the instant case, and Nonindicted 6 also stated in the lower court that Nonindicted 6 took the Defendant’s vehicle by drinking with the Defendant and driving by proxy after drinking with the Defendant at the court of the lower trial, and that Nonindicted 6 also landed the Defendant from 02:30 on the day of the instant case at around 02:30, thereby complying

Therefore, in order to recognize the Defendant as a criminal who committed an indecent act against the victim at around 04:30 on the day of the instant case, the criminal conduct should be identified from 02:30 to the time of the crime. It is difficult to deem that the Defendant was waiting to commit an indecent act on the road or on the road for two hours at the night of winter and winter, and there is no other data that can reasonably explain where the Defendant was committing an indecent act.

(2) The victim stated that, before △△△ Group’s first heading with the offender, the offender went to the right side of the △△ Group, and that he she had the block heading toward the right side of the block, and she again sees the offender before the ○○ Dong Residents’ Self-Governing Center.

The victim’s right side way to the instant fire fighting road is crossing with the instant fire fighting road, and if the Defendant’s house is going to close to the right side of the intersection. However, according to the victim’s statement, the offender runs back to the left side of the front side of the instant fire fighting road, and runs toward the left side from the block corner to the left side, depending on the instant fire fighting road, the offender runs toward the front side of the ○○ Dong community center. If the Defendant actually runs to the right side of the instant fire fighting road, it is difficult to understand what the ties is between the Defendant and the victim’s house, as the direction and the right side of the instant fire fighting road.

(3) Although the victim considered the face of the offender in front of △△△ Ski and at the place of crime several times, under the circumstances where street light was left down under the above, a large number of luxs have been put back on the face of the offender who continued to use the son and her mother with the above. As such, the victim seems not to have been easy for the victim to specifically identify and memory the offender’s face in detail, and the Defendant did not appear until this case.

(4) Although the Defendant had drinking a considerable amount of alcoholic beverage not later than three hours, the victim stated in the court of the trial that he did not snick the alcohol from the offender.

(5) The victim stated that the police officer was asked to explain the offender's appearance at the time when he was aboard the patrol boat to the offender, and Nonindicted 3 also stated to the same purport. On the other hand, Nonindicted 2 stated in the trial court that the victim did not ask the victim about the appearance of the offender at the time when he was found to be the offender, and that the victim was asked at the time when he was searched on the alley of this case after he was arrested.

(6) Even if the entrance entrance to the Defendant’s house was removed from the instant fire-fighting road before plucking, plucking, etc., Nonindicted 3, in line with the “on-site movement report” and “investigation report” prepared by himself, the currency with the prosecution, and the lower court’s judgment, led the Defendant to enter the instant alley while escaping from the instant fire-fighting road, and Nonindicted 2 also stated the said contents in the court of first instance.

(7) Although the wall located in a different place from the instant alley road was installed above, the wall height is merely 1.5 meters, and it seems not impossible for adults to live in a hacks and go beyond the wall due to their hands.

(8) In order to enter the Defendant’s house located on the second floor of the instant housing, the entrance door was opened on the instant fire-fighting road, and the entrance door was opened again on the second floor of the stairs, and the entrance door was opened at the entrance of the instant alley. The entrance door was shot and the entrance was opened when Nonindicted 3 and Nonindicted 2 arrive at the entrance of the instant alley in the patrol lane.

Non-Indicted 3 and Non-Indicted 2 got involved in the patrol-lanes and arrived at the entrance of the mouth at the corner of the branch where the above entrance was set up at approximately 3 seconds, and the Defendant opened the entrance between him and opened the entrance and opened the door again, and there seems to have been time for him to open the door and open the door, and there seems to have been such sounds as opening the door and breaking the stairs. However, Non-Indicted 2 stated that at the court of the trial, Non-Indicted 2 was unable to listen to the sound of the people going up with the door or the stairs open to the door, and that he was melting around it at the time.

(9) According to the above “on-site departure report” prepared by Nonindicted 3, when entering the Defendant’s room and questioning, the Defendant did not normally answer while under the influence of alcohol, and the Defendant was compelled to inquire about whether to commit a crime, and the Defendant was compelled to enter his house at around 2 to 3 hours after drinking alcohol in the place of the Escop and the Escopic intersection, and the Defendant strongly denied the crime. At the prosecutor’s office, the victim stated that the Defendant was acting as the Defendant, when entering the Defendant’s room.

(10) The Defendant stated that the victim was unable to say that he was the offender at first and the face of the Defendant, even though he was admitted to the Defendant’s room, the Defendant stated that “I would like to fit for the Defendant, I would like to fit for the Defendant.” In the lower court’s court, Nonindicted 7 also stated that, even though the Defendant’s mother was asked by the police officer when the police officer went to the victim and went to the room of the Defendant, the police officer’s report on the Defendant was made by the Defendant. However, the police officer pointed out one of the police officers’ clothes, the inside of the Defendant, and the face of the Defendant, and stated that the Defendant was fit for the appearance of the offender, compared with the appearance of the offender.

However, in the court of the court below, Non-Indicted 3 did not deny the question of the defense counsel whether the victim would not use her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her and her her her her clothes

(11) Although the Defendant was using a son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s her son’s son’s son

(12) At the court of the court below, Nonindicted 7 did not regard the Defendant’s entry into the house due to a locking around the time of the instant day, but it was broken at 5 hours before the new wall, and thus, if the Defendant committed the instant crime and entered the house, he could have known that the Defendant could have entered the house, even if there was no such a factor.

(13) If the defendant actually committed the crime of this case on the alleyway near his house, it is not clear that he committed the crime of this case at the risk that street, etc. might occur to neighbors or other people at a brightness place. Moreover, since police officers, who received the first race from the defendant's house entrance, have a time to 5 to 10 minutes from the opening of the entrance to the defendant's room by opening the entrance, so if the defendant thought that he would have concealed the crime, there was sufficient time to leave all of his clothes and both horses, but the defendant did not do so.

D. In light of the above legal principles, the statements made by the victim as shown in the facts charged are recorded in detail by the police as to the victim's appearance or appearance, etc. of the offender, and the police did not allow other persons similar to the victim to select the offender at the same time, including the suspect, to face face with the victim and make a statement after confirming the offender. Thus, there is a danger that the victim's memory is limited and inaccurate and the defendant is suspected of being suspected of being a criminal. In light of the above points, it is difficult to view that the defendant's previous statement is sufficient to suspect the defendant as a criminal, as well as the victim's statement is difficult. Thus, even if the victim's statement is added to the statements made by Nonindicted 3 and Nonindicted 2, it is difficult to prove the contents of the statement to the extent that there is no reasonable doubt that the defendant committed an indecent act by force, and there is no other evidence to support it.

Therefore, since the facts charged in this case constitute a case where there is no proof of a crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, the judgment of the court below found the guilty of the facts charged in this case by misunderstanding the facts,

5. Conclusion

Therefore, the judgment of the court below is reversed as the defendant's appeal has merit, and it is again decided as follows.

The summary of the facts charged against the defendant is identical to that of the preceding Paragraph 2, which constitutes a case where there is no proof of a crime for the same reason as seen above, and thus, a judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence against the defendant pursuant to Article 58(2) of the Criminal Act is to be published. It

Judges Masung Man (Presiding Judge) (Presiding Judge) and Lee Jong-ho