The case rejecting the admissibility of evidence on the ground that the confession of the defendant based on the victim's statement by the prosecution is not reliable.

The case rejecting the admissibility of evidence on the grounds that the statement by the prosecution of the defendant who made a confession of all the facts constituting the crime alleged by the victim is against the objective truth in some contents, and it is hard to believe that the contents of the victim's statement, which became the basis of the confession, are not reliable as a whole because there are many parts of the victim's statement which became the basis of the confession.

Articles 308 and 312(1) of the Criminal Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant

Attorney Park Ba-young

The defendant is innocent.

1. Summary of the facts charged

이 사건 공소사실의 요지는, 피고인이, 1996. 3.경 알게 된 후 수시로 정을 통해 오던 피해자(여, 34세)가 피고인을 멀리하는 것에 대해 불만을 품고, 1) 같은 해 7. 5. 07:00경 서울 구로구 가리봉동 가리봉시장 소재 피해자가 운영하는 (상호 생략) 포장마차집에 찾아가 피해자에게 따라오지 않으면 가게를 불사르고 죽이겠다고 겁을 준 후, 같은 날 09:00경 피해자를 같은 구 가리봉1동 유정장여관 303호실로 끌고가 정을 통할 것을 요구하였으나 거절당하자 발로 피해자의 배를 걷어차고 떠밀어 침대에 눕힌 다음 베개로 입을 틀어막고 양손을 머리 위로 올린 채 무릎으로 짓눌러 반항을 억압한 후 1회 간음하여 강간하고, 2) 같은 해 7. 16. 16:00경 수원시 수원역 앞 '꽃마차' 카바레에서, 빌린 돈 300,000원을 돌려 주겠다면서 피해자를 전화로 불러낸 후 피고인의 일행 등과 어울려 술을 마시다가 피해자가 화장실에 간 사이에 피해자의 손가방에서 피해자 소유의 현금 400,000원, 자기앞수표 100,000원권 5장 등 합계 금 900,000원을 꺼내어 가 이를 절취하고, 3) 같은 날 18:00경 안양시 안양유원지 내 상호불상 여관 103호실에서, 전항과 같이 카바레에서 술을 마시고 취한 상태인 피해자를 유인하여 정을 통할 것을 요구하였으나 거절당하자 피해자를 위 여관 방실의 욕실로 끌고가 플라스틱 바가지로 머리를 3회 때려 정신을 잃게 하고 잠시 후 정신을 차린 피해자에게 말을 듣지 않으면 죽이겠다고 협박하여 이에 반항을 포기한 피해자를 1회 간음하여 강간하고, 4) 같은 달 21. 08:00경 피해자가 운영하는 위 포장마차집에 찾아가 가게문을 닫지 않으면 죽이겠다고 겁을 준 후 피해자를 근처 상호불상 여관 2층 호실불상 방으로 끌고 가 반항하는 피해자의 목을 조르고 허리띠를 풀어 휘둘러 이에 겁을 먹고 반항을 포기한 피해자를 1회 간음하여 강간하고, 5) 같은 해 8. 초순 04:00경 피해자가 운영하는 위 포장마차집에서 피해자에게 찾아가 가게문을 닫도록 강요하고서는 피해자를 택시에 태워 광명시 소재 애기능으로 끌고 가 말을 듣지 않는다고 목을 조르고 뺨을 수회 때려 겁을 준 후, 같은 날 05:00경 서울 관악구 신림동 신림4거리 근처에 있는 상호불상 여관으로 끌고 가 피해자의 머리를 물을 채운 욕조에 2회 처박는 등 폭행하여 겁에 질려 반항을 포기한 피해자를 1회 간음하여 강간하고, 6) 같은 달 20. 07:00경 같은 동 신림4거리 근처에 있는 상호불상 여관 606호실에서 주먹으로 피해자의 머리를 3회 때리고 목을 조르고 베개로 입을 틀어 막는 등 폭행하여 이에 반항을 포기한 피해자를 1회 간음하여 강간하고, 7) 같은 달 23. 13:00경 위 (상호 생략) 포장마차집에 찾아가 출입문을 부수고 침입하고, 2층 다락방에서 잠자는 피해자에게 정을 통할 것을 요구하였으나 거절당하자 목을 조르고 플라스틱 상으로 가슴을 마구 때려 이에 겁에 질려 반항을 포기한 피해자를 1회 간음하여 강간하고, 8) 같은 달 25. 17:00경 위 (상호 생략) 포장마차집에서 피해자에게 자주 전화하지 않는다는 이유로 맥주병을 깨어들고 죽이겠다고 겁을 준 후 목을 조르고 발로 전신을 걷어차는 등 하여 피해자를 폭행하고, 9) 같은 해 9. 23. 16:00경 서울 구로구 구로5동 상호불상 여관 2층 방에서 피해자와 함께 술을 마시다가 욕정을 느껴 피해자와 정을 통하고자 하였으나 피해자가 이를 거부하자 말을 듣지 않는다고 맥주병으로 피해자의 오른쪽 무릎을 1회 내리쳐 반항을 포기한 피해자의 가슴을 입으로 물어뜯고는 피해자를 1회 간음하여 강간하고, 이로 인하여 피해자에게 약 10일간의 치료를 요하는 우측 유방 피하출혈상 등을 가하였다는 것이다.

2. Details of the defendant's lawsuit;

As to the facts charged in the above facts charged, the defendant did not commit such crimes at all, and there is no fact that he had sexual intercourse with the victim at the time and place stated in each facts charged, but there was no violence or intimidation against the victim or injury caused thereby. As to the facts charged in paragraph (3) of the same Article, it was true that he did not rape with the victim at the time and time stated in the facts charged, and there was no fact that he had sexual intercourse with the victim, 6), 7), and 8 of the facts charged in paragraph (1) of the same Article, and there was no fact that he had sexual intercourse with the victim at the time and place stated in the facts charged, and there was no fact that he had committed such crimes at the time and time stated in paragraph (2) of the same Article, but at around August 4, 1996, he had 'the fireworks car' with the victim, and the victim under the influence of alcohol had knicked with his son on his son, and there was no concern that the defendant had lost the check by opening up 00 k and kept the check.

3. The relationship of evidence;

(1) First of all, it is difficult to believe that the victim's statement made by the victim, the victim's witness among the third trial records that can be the most valuable evidence for the charged facts of this case, each statement made by the police and prosecutor of the above victim, each statement made by the police and prosecutor of the prosecution, and the part of the suspect examination prepared by the judicial police assistant, etc. of the defendant's statement made by the victim for the following reasons.

In other words, the victim, at around 09:00 on July 5, 1996, led the victim to the above female 10 to 15 minutes, who was sexual female female 34 years old with the main points at night, by assaulting and threatening the victim to refuse to find the victim's main points at the time, demanding the defendant to control the situation, and inducing the victim to do so, and leading the victim to the above female 10 to 15 minutes at the time. The victim did not request relief from the victim's main or employee at night, and the victim did not request relief from the victim's sexual female 34 years old with the main points at night (in particular, it is presumed that the victim's sexual female 34 years old with the main points at night at night at around 09:0). The same applies to the case where it is difficult for the victim to easily lead the victim to rape as he did not appear in our society (in light of the rule of experience, it is presumed that it is difficult for the victim to easily lead the victim to rape as he did.

In addition, on the 16th day of the same month as the facts charged, the victim appeared to have been able to dynasium 18:00 on the same day, which is the 16th day of the charges, and 18:00 on the same day. The police first dynasium 16:0 on the 16th day of the same month, the victim was able to make a statement by the defendant's telephone that he would return money before she was dynasium 16:0 on the 16th day of the same month, and the victim was synasium 9:0,000 on the 6th day of this month, and the victim was synasium 9:0 on the 6th day of this case, and the victim was synasium synasium synasium she would have been raped by the defendant and the defendant. On the other hand, the victim was synasium she would have no mind.

In addition, according to the statement made by the defendant among the first trial records, the defendant took 2 to 3 times a week sexual intercourse with the victim from March 196 to the date of detention. On the other hand, the victim made a statement at the prosecutor's office that had no sexual intercourse with the defendant 7 times a week in addition to the act of rape in this case, it was not consistent with the victim's statement at least 1 to 6 times a week, but it is difficult for the victim to have a sexual intercourse with the defendant at least 1 to 3 times a day after rape in the second trial records. According to the statements at least 1 to 4th trial records, the victim's sexual intercourse with the defendant during the same time as the defendant's 7th trial records, and the victim cannot be seen as having been forced to have sexual intercourse with the defendant during the same time. According to the statements at least 5th trial records, the victim's sexual intercourse with the defendant at least 1 to 1 to 3th of the same month and the defendant's sexual intercourse with the defendant.

Furthermore, in relation to the facts charged about the intrusion upon the residence in No. 7 and the assault in No. 8 of this case, the victim sought an incidental punishment against the defendant in filing a complaint about the rape in each of the crimes of this case. As seen earlier, the victim's statement about the above intrusion upon the residence and assault cannot be acknowledged as credibility on the same ground as the victim's statement about the above rape is not recognized as credibility.

In addition, as long as it is difficult to recognize the overall credibility of the victim's statement, the statement in the medical certificate of injury prepared by the doctor near the inside of the evidence as to the facts charged (the content that the victim was diagnosed on October 2 of the same year after September 23, 1996, when nine days from September 23, 1996, when the victim was victimized by rape) is insufficient to be considered as evidence as to the facts charged against rape.

(2) Next, according to the statement of the defendant's statement in the first trial record, the statement of the suspect interrogation protocol of the defendant prepared by the prosecutor and the part of the defendant's interrogation protocol of the defendant prepared by the assistant judicial police officer, the defendant confessions about each of the above facts charged, and denies some of the facts in the police (the above facts, No. 1, No. 4), No. 5, and No. 9) and the remainder of the facts charged, but the prosecutor made a confessions about all the facts charged, and denies all the facts charged again in this court. The part of the defendant's statement in the interrogation protocol of the defendant prepared by the assistant judicial police officer denies the contents in the court, so it cannot be admitted as evidence since the defendant denies the contents in the court. The statement of the defendant's whole confession of the facts alleged by the victim in the prosecutor's office is contrary to the objective truth as seen earlier, and it is difficult to admit credibility of the defendant's statement as evidence to respond to the victim's statements that became the basis of the confession made by the defendant in an investigative agency.

4. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of the crime, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

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

Judges Lee Hong-ho (Presiding Judge)