[1] The meaning and limitation of the principle of free evaluation of evidence in a criminal trial and the meaning of "reasonable suspicion" that should be excluded from the scope of the formation of conviction

[2] Requirements and method for the establishment of a public contest relationship

[3] The case holding that even if the defendants, who was prosecuted as an accomplice of robbery, committed a crime of joint injury by force under the influence of alcohol merely by denying the criminal intent of robbery, the defendants can sufficiently recognize the robbery of the defendants by taking into account various circumstantial evidences supporting the confession by one of the defendants, the victim's statement and prior conspiracy

[4] The method of determining the credibility of a confession where the defendant made a statement that acknowledged the facts charged at an investigative agency or the court

[5] In a case where the victim made a statement that corresponds to the facts charged in lieu of the investigation agency and the court of first instance, but made a somewhat ambiguous statement in the appellate trial, it is necessary to consider when determining the credibility of the victim's statement

[1] Articles 307 and 308 of the Criminal Procedure Act / [2] Article 30 of the Criminal Act / [3] Articles 13, 30, and 333 of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act / [4] Article 308 of the Criminal Procedure Act / [5] Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 94Do1335 delivered on September 13, 1994 (Gong1994Ha, 2695) Supreme Court Decision 2004Do2221 Delivered on June 25, 2004 (Gong2004Ha, 1290) Supreme Court Decision 2004Do362 Delivered on April 15, 2005 / [2] Supreme Court Decision 2005Do2014 Delivered on September 9, 2005 (Gong2005Ha, 1646) / [4] Supreme Court Decision 2003Do1520 Delivered on September 26, 2003

Defendant 1 and one other

Defendant and Prosecutor

Attorney Lee E-woo

Seoul High Court Decision 2006No425 decided July 21, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

First, the prosecutor's grounds of appeal are examined.

1. Article 308 of the Criminal Procedure Act, which provides for the principle of free evaluation of evidence, provides that the probative value of evidence shall be decided by the judge's free evaluation of evidence is appropriate for the discovery of substantial truth. Thus, a judge of the fact-finding court who has the exclusive right to the determination of evidence shall take into account the perception obtained in the trial proceedings in fact-finding and the evidence investigated. In addition, the judge's determination of the probative value of evidence shall conform to logical and empirical rules, and the degree of the formation of a conviction in a criminal trial shall be without reasonable doubt. However, it is not required to exclude all possible doubts, and rejection by causing a suspicion without reasonable grounds recognized as having probative value is not allowed beyond the bounds of the principle of free evaluation of evidence. The reasonable doubt here refers to a reasonable doubt as to the probability of a fact inconsistent with the facts that are inconsistent with logical and empirical rules, and it shall not be included in a reasonable doubt, such as a reasonable doubt or abstract suspicion based on an abstract doubt or abstract possibility.

On the other hand, in the case of accomplices who are engaged in a crime by two or more persons, the conspiracy does not require any legal punishment, but is sufficient if there is an implicit communication on the joint execution of the crime directly or indirectly between the accomplices, and if there is no direct evidence, it can be recognized by the circumstantial facts and empirical rules (see Supreme Court Decision 2005Do2014, Sept. 9, 2005).

Therefore, even in a case where the Defendants, who was prosecuted as an accomplice in robbery, have argued that they committed the crime of robbery in contingency under the influence of alcohol only by simply avoiding the criminal intent of robbery, if one of the Defendants actively led to the confession of the Defendants’ specific robbery in the court, and the victim has made a consistent statement in the investigative agency and the court, and there are various circumstantial evidence supporting that the crime in question was committed in accordance with the empirical rule, and there are several circumstances supporting that the crime in question was committed in accordance with the prior conspiracy, such evidence can be fully recognized by taking into account the above evidence, and the rejection of the above evidence is not permissible as exceeding the bounds of the principle of free evaluation of evidence.

2. The facts charged and the judgment of the court below

The gist of the facts charged of this case, which was duly changed from the first instance trial, was found to have been charged with attempted robbery. The Defendants knew that there was accommodation in the Seodaemun-gu Seoul High-dong (hereinafter “the instant cartel”) operated by Nonindicted Party 1, and that there was only one employee who protects the seat, and that it is easy to commit robbery. In order to raise entertainment expenses, they conspired to enter the instant cartel, carrying the knife and take money and valuables, and they did not have any other customers, and did so with the victim Nonindicted Party 2, who was an employee, to sit in the second floor, with his own knife and knife knife and knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife k and k k knife k.

As to this, the court below reversed the first instance judgment on the ground that there is no credibility in light of the above circumstances, such as Defendant 1’s confession in the first instance court and victim Nonindicted 1 and 2’s reversal of the contents of the previous statement when Defendant 1 and the victims were before the court below, and the evidence submitted by the prosecutor alone did not establish evidence to acknowledge the robbery portion. The court below accepted the defendants’ assertion at the court below and found Defendant 2 guilty of the violation of the Punishment of Violences, etc. Act, i.e., “the defendants jointly enter the instant telecom, and requested Defendant 2 to protect the victim who was an employee, but there was no room for Nonindicted 2 to do so.” Defendant 2 found Defendant 1’s knife and knife with Nonindicted 2’s face and knife with Defendant 1’s body.”

3. Judgment of the Supreme Court

However, examining the evidence and records in light of the aforementioned legal principles, the court below rejected all the confessions made by Defendant 1 and the credibility of the statements made by the victims, and found the Defendant not guilty of the robbery among the facts charged in this case is difficult to accept in the following respect.

A. As to Defendant 1’s confession in the court of first instance

In a case where the defendant made a statement that recognizes the facts charged in an investigation agency or court, the credibility of his confession should be determined in consideration of whether the contents of the statement are objectively rational, what is the motive or reason of the confession, what is the reason leading to the confession, what is the reason why the confession was made, whether there is any conflict or inconsistency with the confession among other evidence than the confession (see Supreme Court Decision 2003Do1520, Sept. 26, 2003, etc.).

Defendant 1 denied the facts of the instant crime by the police and the prosecution as a whole, and, at the trial date, Defendant 2 and Nonindicted 3 (the first instance court clearly stated that the names of Defendant 2 were immigration, and the Defendants and Nonindicted 3, who returned to the Republic of Korea for military service, etc. from the time they were living in the U.S., shall not be able to go well as our horses.) stated that they carried out drinking with their own passengers after drinking, but they continued to be arrested by the police officers without any reason to go back to their surroundings, and that they did not enter the instant telecom on the ground that they were arrested, and that they would not have been able to go back to the instant telecom, and that they would have been able to go out of the instant telecom on the ground that they would have come into the instant telecom, and that they would not have been able to take money out of the Defendant 2 so long as they were able to go out of the instant telecom.”

On the other hand, Defendant 2 stated to the effect that, on the other hand, from the investigative agency to the court of first instance, Defendant 2 stated to the effect that, in substitution from the investigative agency to the court of first instance, “it is between Defendant 1’s vehicle after drinking with Defendant 1 and Nonindicted 3, and Defendant 1’s contact with the mother, and fighting with the mother on his own behalf, it would be memory, but there is no memory as to the existence of a person who gets the mother, and what the reason for fighting is.”

On October 8, 2005, the day before the occurrence of the instant crime, Defendant 2, who reversed the previous statement at the second trial day of the lower trial, continued to drink and drink the following facts, namely, from October 8, 2005, Defendant 1, who was the day before the instant crime occurred. Defendant 1 began dispute with Defendant 1 on the wind, which is doubtful that he had a sexual intercourse with Defendant 4, and after he hedging with other friendships, he was parked in the instant telecom, for the same reason within Defendant 1’s car parked near the instant telecom, and Defendant 2 took advantage of the following facts: Defendant 1 took advantage of his key to the instant crime; Defendant 1 took advantage of his motive from the victim, and she took advantage of his motive to return them; Defendant 1 took advantage of his motive to the victim; Defendant 1 took advantage of the fact that he did not request the victim’s testimony and her employees to appear in the process of his testimony, and Defendant 2 took advantage of the fact that she had not been able to make his testimony and her statement.

However, in light of the following circumstances acknowledged by the record, ① Defendant 1 appears to have been aware of the fact that he/she was not guilty of committing the crime, and that he/she would have been able to receive a more severe punishment as alleged by the victims, and that he/she would not have been able to receive a false confession in accordance with Defendant 2’s proposal. However, Defendant 1 was aware of the fact that he/she was not guilty of committing the crime, and that he/she would not have been able to receive a more severe punishment than that of Defendant 2, and that he/she would not have been able to receive more than that of Defendant 1, and that he/she would not have been able to receive more punishment than that of Defendant 2, even if he/she was aware of the fact that he/she was able to receive more punishment than that of Defendant 1, and that he/she would not have been able to receive more punishment than that of Defendant 2, and that he/she would not have been able to receive more punishment than that of Defendant 1.

B. As to the credibility of each of the statements made by the victim Nonindicted 1 and 2

In the instant case, it is clear that the Defendants inflicted bodily injury on the victims. As such, the fact that the Defendants demanded money from the victims in the process and the fact that the Defendants had the victim Nonindicted Party 1’s wallets constitutes the element of the crime of robbery. The circumstances up to the time of the Defendants’ entrance the instant telecom and assault Nonindicted Party 2 constitute indirect facts that can serve as the basis of conspiracy of robbery and criminal recognition.

With regard to this point, the victims made a statement that corresponds to the facts charged at the investigative agency and the court of first instance on behalf of the accused, and rather ambiguous statements are made at the court of original instance. In such a case, when determining the credibility of the victims' statements, it is common that human memory in accordance with the empirical rule will face with the passage of time; the victim of a criminal act is the principal basis for his/her own statement; and the victim of a criminal act was sentenced to heavy punishment against the accused at the court of first instance, and the appellate court again made the statement unfavorable to the accused by the defendant pursuant to the defendant's motion for examination as evidence, it is doubtful that if the victim again appeared in the court of first instance and is forced to bring the defendant into a suspicion as to whether his/her memory is guaranteed, it is highly likely to avoid a conclusive statement and make a ambiguous statement. This possibility is consistent with the main part of the statement, taking into account the fact that the agreement between the accused and the victim on compensation for damages caused by a crime, and there is no part that is unreasonable or contradictory in light of the empirical rule, and there is no obvious motive or obvious reason for rejection of the first statement.

Examining the credibility of each of the statements made by the victims of this case from this point of view, there is no consistent and contradictory parts from the first stage of investigation to the court of original trial as follows. The victims did not find any motive or reason to make a false statement to the Defendants, and there is a difference in the case where the Defendants’ act is acknowledged as an injury by robbery and a case where the Defendants’ act is recognized as a violation of the Punishment of Violences, etc. Act, it is difficult to say that the Defendants continued to demand money and the Defendants paid back money. Meanwhile, in this case, the victims expressed their intent that they would not want to receive compensation from the Defendants and punished against the Defendants after the first instance judgment was sentenced, it is unreasonable to reject all of the credibility of the victims’ statements on the robbery solely on the basis of the reasoning of the court below’s explanation.

(1) As to Defendant 1’s demand for money to the victim Nonindicted Party 1

The victim non-indicted 1's statement on this point is the victim's statement that "I am in the Scarter room used to assault non-indicted 2 and thus I am knife and demanded money," "I am knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I knife I kn's statement)" and "I am knife I knife I knife I knife I knife I k I knife I k I kn's statement, I do not have a consistent statement about I I k I k I k I k's statement.

In addition, the victim non-indicted 2's statement at the police station is also consistent with the above non-indicted 1's statement that "after Defendant 1 injured the victims in knife, the victims were unable to resist," and it is consistent with the above non-indicted 1's statement. However, in the prosecutor's office, the non-indicted 2 stated that "the defendant 1 demanded money from the non-indicted 1 or was unable to hear it." However, in light of the fact that the non-indicted 2 continued assault from the defendant 2 at the time of the crime of this case, it cannot be said that the non-indicted 2's demand for money or was unable to hear the credibility of this part of the statement by the non-indicted 1.

(2) As to the fact that Defendant 1 got away with the victim Nonindicted Party 1’s wallet

The victims' statement on this point was made consistently to the effect that "Defendant 1 brought about the wall" was changed from a conclusive statement to a ambiguous statement that "The fact that Non-Indicted 1 was destroyed by the wallet on the wallet, or the defendants knew that he would have brought about the wallet", but it is determined that it was not to deny the credibility of the initial statement on that part. In other words, the victim Non-Indicted 1 and Non-Indicted 2 consistently stated in the police, the prosecution, and the court of first instance that "the owner who knife after the knife in the knife in the knife and escaped from the wall, and that Non-Indicted 1 opened the wall to the effect that "Non-Indicted 1 was unspeed," but it was not clear that it did not bring about the defendant 1's statement entirely because it did not appear that he did not go to be the defendant 1."

In addition, it is clear that Non-Indicted 1 was faced to the Defendants at the time of the instant crime, and then the wall was destroyed. After committing the crime, Non-Indicted 1 was driving away from the Defendants, Non-Indicted 2 made a report to the police, and Non-Indicted 1 and the police officer reported to the police, and then the victim's statement that Non-Indicted 1 and the police officer went out from the first floor is sufficient to recognize its credibility, in light of the following: (a) it seems that there is little possibility that the Defendants and other persons than the victims were leaving away from the seat of the wall; (b) although the location of the wall was not revealed, it was not found that Non-Indicted 1 did not have any clothes and portable knick that Non-Indicted 1 left the wall.

(3) As to the situation until the Defendants committed assault against Non-Indicted 2 by entering the instant telecom.

이 부분에 대하여 공소외 2는 경찰에서부터 제1심 법정에 이르기까지 일관하여 ‘피고인들이 거의 동시에 2층으로 올라왔으며, 올라오자마자 피고인 2가 아무 말도 없이 카운터를 뛰어넘어 자신을 폭행하기 시작하였다.’고 진술하다가 원심 법정에서는 ‘ 피고인 2가 영어로 무어라고 중얼거리면서 들어오기에 알아듣지 못하겠다는 시늉을 하자 곧바로 카운터를 뛰어넘어왔다.’는 취지로 진술하고 있다. 그러나 이러한 원심에서의 진술내용도 피고인 2가 주장하는 것처럼 공소외 2에게 영어로 ‘방을 달라’고 요구하고 이를 알아듣지 못하는 공소외 2와의 사이에 잠시 실랑이가 있은 후에 비로소 피고인 2가 카운터를 넘어왔다는 취지는 아님이 분명하므로, 공소외 2가 종전의 진술을 번복한 것이라고 보기 어렵다(덧붙여, 모텔 종업원인 공소외 2가 방을 달라는 정도의 영어와 몸짓을 알아채지 못하였다는 것도 선뜻 이해가 되지 않는다).

The court below rejected the credibility of the non-indicted 2's statement, on the ground of the defendants' rejection of the credibility of the non-indicted 2's statement, it goes against the defendant 1's legal statement or the defendant 2's voice prior to his second floor's second floor's second floor's statement, and it cannot be ruled out that it was possible for the defendants 2 to have known about the second floor at the same time through CCTV monitors, and at the time, the defendant 1 was in a situation where the defendant 2 was unable to take face differently from the non-indicted 2's statement because he did 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 own her her her her own her own her her own her her own her own her own her her own her her her her own her her own her her own her hers.

C. As to other evidence and circumstantial facts

(1) According to the records, it is unreasonable to view that the Defendants had obtained a certain amount of income as an English instructor, etc., but there was no motive to commit robbery. Rather, according to Defendant 1’s statement at the prosecutor’s office, it is reasonable to view that Defendant 2 had no motive to commit robbery. Defendant 2 had no motive to commit robbery. Defendant 2 had no objective motive to commit robbery on October 9, 199, the day immediately preceding the day when the principal agent took 200,000 won as well as Defendant 2 had no motive to commit robbery, since Defendant 2 had no motive to commit robbery. Meanwhile, Defendant 2 had no motive to commit robbery, on the other hand, since Defendant 2 had no motive to commit robbery.

(2) Before entering the instant telecom, the Defendants did not provide a reasonable explanation as to Defendant 1’s causes, both of Defendant 1’s wallets and mobile phones. This is highly likely to have taken measures to prevent the Defendants from being exposed to their personal information by leaving the aforementioned objects in the scene of crime. Accordingly, the above facts constitute indirect evidence supporting the Defendants’ solicitation of robbery in advance.

(3) In light of the fact that Nonindicted 5, 6, and 7, the police officers who directly arrested the Defendants or immediately examined the Defendants, testified that they did not smell the Defendants, and the victim Nonindicted 2 also stated that they did not take smell when they were assaulted by Defendant 2, and immediately after the crime was committed, Defendant 2 was trying to immediately walked with Defendant 1, who was parked in the place away from the Act on the Law of National Assembly at the place where the crime was committed, and Defendant 1 attempted to remove the blood trace that was caught in his own seat at the police zone after the arrest. In view of the fact that Defendant 1 attempted to remove the blood trace that was caught by the police zone after the arrest, it is difficult to believe that the defense of the Defendants, which was a contingent injury, was done under the influence of alcohol.

D. Nevertheless, the court below rejected all of Defendant 1’s confession in the court of first instance, which corresponds to the part that the Defendants conspired to take the part against the victims, and the statements in the victim Nonindicted 1 and 2’s investigative agencies and the court, and found the Defendants not guilty on the ground that there is no other evidence to acknowledge this part of the facts charged, it cannot be said that the court below erred by misapprehending the legal principles on the principle of free evaluation of evidence or by misunderstanding facts against the rules of experience and logic, or by misunderstanding facts against the rules of evidence, thereby adversely affecting the conclusion of the judgment. The prosecutor’s appeal pointing this out has merit.

4. Scope of reversal

Therefore, the part of the judgment of the court below which acquitted the defendant 1 of the injury by robbery cannot be reversed. Since the above injury by robbery and the violation of the Punishment of Violences, etc. Act which the court below found guilty are related to the crime of this case, the judgment of the court below shall not be reversed in its entirety on the defendant 1's appeal on the premise that the crime of this case constitutes a violation of the Punishment of Violences, etc. Act, not the robbery injury by robbery, but the crime of this case constitutes a violation of the Punishment of Violences, etc. Act.

5. Conclusion

Therefore, without examining Defendant 1’s grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)