(영문) 서울중앙지방법원 2019.5.22. 선고 2018고합1072 판결

On May 29, 2017, the Defendant found the victim C (the age of 12) who completed the activities on land in the hallway of the Seoul International School in Gwanak-gu, Seoul Special Metropolitan City as a teacher of the Seoul ○ Elementary School, and returned to the classroom, and the victim Da Da Da d d d k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k k' k k k k k k k k k k

2. Determination

A. Relevant legal principles

In a criminal trial, the burden of proving the facts constituting an offense prosecuted in the criminal trial is to be borne by the public prosecutor, and the finding of guilt is based on evidence with probative value, which leads to the judge to have the conviction that the facts charged are true beyond a reasonable doubt. Therefore, if there is no such evidence, even if there is a suspicion of guilt against the defendant, it is inevitable to determine the benefit of the defendant (see Supreme Court Decision 2009Do1151, Jul. 22, 2010).

(b) Fact of recognition;

According to the evidence duly adopted and examined by this Court, the following facts are recognized.

1) The victim, on May 29, 2017, completed a am campaign on May 29, 2017 with the land-based claim, and took part in the defendant's movement while moving within the building in Seoul ○ Elementary School together with D (5 years in that time), E (5 years in that time), and F (3 years in that time) on the ground of land-based claim.

2) The Defendant told the victim to the effect that he would leave the vehicle to a classroom that the Defendant was in charge of the Defendant’s attendance, and the victim talked about the Defendant’s speech and behavior in the am to G, a cococoin on the land after the completion of six educational days in the same day.

3) G received a written statement from the victim on the same day, talked with H and specialized counselors of community education at Seoul OO Elementary School in Seoul and I, and reported the above case to J, which was an assistant principal at the time.

4) Around June 1, 2017, around three days after the victim’s mother, H, I, and G were gathered in the counseling office of the Seoul ○ Elementary School and continued consultation on the instant case.

5) At the time of the instant case, J reported to the principal of the Seoul Elementary School, and the principal issued a verbal warning against the Defendant.

6) The instant case was reported to an investigative agency around May 29, 2018, approximately one year after this case.

C. Specific determination

The Defendant consistently asserts from the investigative agency to this court that no indecent act by force has been committed by the victim, and denies the facts charged in this case. In light of the aforementioned legal principles and the evidence duly adopted and examined by the court, and the following circumstances acknowledged in addition to the aforementioned facts, it is difficult to believe that the statement made by the victim’s investigative agency, which corresponds to the facts charged in this case, was presented by the prosecutor, to the extent that there is no reasonable doubt that the Defendant committed an indecent act by the victim as stated in the facts charged, and there is no other evidence to acknowledge this otherwise.

1) ① On June 16, 2018, the victim appeared at an investigative agency on the date indicated in the instant facts charged, and stated to the effect that “as the Defendant shouldered in his/her hands at the time indicated in the instant facts charged, he/she would take the right part of the victim’s shoulder with the same hand, and come back to the Defendant’s classroom after the completion of the class.” However, the statement to the effect above was made to the effect that “the victim completed the statement on the instant case between about 30 minutes and again asked the investigator to the effect that he/she did not have any other physical contact, and the victim made the statement to the effect that it was made before the investigator asked the above questions:

101 문 : 아, 그래? 그래? 그래, 그러면 선생님이 했던 일? 아까 얘기했는데 거기에 대해서좀 얘기해볼래?102 답 : 맨 처음에 오전 운동을 끝나고 그 다음에 애들이랑 같이 반에 올라가던 도중에선생님을 만났는데.. 그냥... 자기 반에, 끝나고 자기 반에 와서 같이 차를 마시자,라고 했는데 그래 조금 고민을 했었는데 그냥 그 팔 이렇게 잡고 올거냐, 안 올거냐, 막 이렇게 얘기를 했었고, 그래가지고 그냥 얼, 얼떨결에 그냥 네, 라고 했는데 그 다음에 그 수업시간에 그냥 수업 집중도 안되고 조금 기분이 진짜 나쁘고어떻게 해야 될지 잘 몰라가지고 끝나자마자 육상부 선생님한테 그냥 가방도 안가지고 뛰어 내려가서 어떻게 해야 되냐고 물어보고 그랬었어요....(중략)...275 문 : 그러면 우리 OO가 뭐 그거 때문에 어떻게, 힘들었어?276 답 : 네, 그래가지고 상담을 받을려고 했는데 생각해보니까 그때 바로 옆 반이 K(피고,인을 의미함) 선생님 반인거에요. 근데 가다가 마주칠까봐 무서워서 막 가지도 못하겠고...그래가지고 좀.277 문 : 그 어떤 점이 힘들었어? C야?278 답 : 그냥 마주치면 또 그렇게 말 걸을까봐.279 문 : 말 걸을까봐 그게 힘들었어?280 답 : 네. 그리고 제가 중학생이 돼서도 이렇게 친구를 만나러 후문 쪽으로 이렇게 가고있었어요. 그때 저희는 그날에 쉬는 날이었고 초등학교는 가는 날이었어요. 그래갖고 그때 친구를 만나러 가고 있었는데 K 선생님 만나가지고...(중략)..285 문 : 그래. 그리고 또 이제 K 선생님에 대해서 또 뭐 얘기해줄 거 있어?286 답 : 음... 다음에 급식실에서 그떄 저한테 막 말 걸지도 말고 그냥 접근금지를 시켰었었는데 그 뒤로도... 그 뒤로 저를 막....(중략)..290 답 : 저 막 어깨 이렇게 치고, 그 다음에 인사하고 막 갔어요, 그때도, 그때는 그냥 격리조치 그냥 말 걸지도 말고 그냥 아무것도 저한테 아무 것도 하지, 하지 않기로

No. 3.385 literature: N.W., however, g., that g. g., that g. g. g., that g. g. g. g., that g. g. g. g., that g. g. g., that g. g. g., that g. g. g., that g. g. g. g. g. , that g. g. g. h. : 387; g. g. h. h. : g. h. : g. g. h. : g. h. : g. g. h. : g. g. h. : g. h. : g. g. h. h. : g. g. g. g. g. h. h. : g. g. g. h. h. h. h. h. h. : h. h. h. h. h. h. h. h. h. h. ? h. h. h. h. h. h. h. ? h. h. h. h. h. h. h. h. h. ? ? ? h. h. h. h. h. h. h. h. h. ? ? ? . h. h. h. . . . h. h. h. h. . h. h. h. h. . . . . h. . h. . h. h. h. h. h. h. h. h. h. . h. h. h. h. h. h. h.

② Examining the above victim’s statement, it can be seen that there were no statements about physical contact with the Defendant at the time of the instant case, such as that the Defendant was dead, or that the Defendant was salved, and that the Defendant was salved, but the Defendant did not make statements about the part that was rhyd with the victim’s shoulder, such as salving the victim’s shoulder. Thus, it is difficult to view the victim’s statement as a change in the part of the victim’s statement that the investigator respondedd that he was rhyd with other physical contact, such as salvating the victim’s shoulder and salving the shoulder. Furthermore, the victim’s statement appears to have been difficult because the Defendant was salved at the time indicated in the instant facts charged and did not walk the horses after the instant case, and that the Defendant was forced to commit indecent act by force.

The victim written a written statement as follows on the day of the instant case, and the content of the written statement does not contain any content that the Defendant forced the victim to commit an indecent act on the date stated in the facts charged of the instant case. Thus, even if the Defendant had physical contact with the victim at the time of the instant case, as stated in the investigation agency, as stated in the first statement, the victim’s emphasis on the time of the preparation of the written statement seems to have been the Defendant who was the end of the class after the completion of the class.

The 4-1st half son (referring to the defendant) saw the vehicle as the 4-1st half of the class, and dice, such as the franchising of the vehicle, and the franchising of the franchis, such as the G was found to have been darb, and darcing of the franchis. However, the franchis were abnormal, and the franchis were unre, and the franchised (two weeks).

2) ① On June 1, 2017, the records on the case management of educational welfare case prepared by the community education specialist H following the victim’s mother and counseling around June 1, 2017 contain the following: “On the end of May 2017, K teachers look at the view of the victim’s abnormal light, i.e., “on the end of May 1, 2017, K teachers would see the victim’s abnormal light, i.e., she would see she she she, she she she she, she she she?” The records on the case management prepared by the professional counselor (Evidence No. 4). It focuses on the Defendant’s indecent act in relation to the case at the time of the victim’s humiliation, not on what kind of speech causes a sense of sexual humiliation to children.”

In addition, H stated in this court that “I am the victim at the end of May 2017, at the time, from the land level Gco, I am the victim at the end of May 201, and the content of H am the victim’s arms and am the victim’s body. At the time, I am the victim’s body contact with the victim at the time, and am the victim’s body contact with the victim, and discussed subsequent measures.” At the time, H and I am the victim’s statement itself as a matter of understanding that H and I am the victim’s indecent act was at the time, and if the Defendant’s indecent act was at the time, it is not easy to understand that I am the victim’s body contact with the victim at the time, and that this content was not written in the counseling record at all).

③ Furthermore, G and H stated in this Court that on the day of the instant case, G, H and I reported the instant case to the effect that they had sought J, which is an assistant principal at the time of the instant case, and that they discussed about the Defendant’s physical contact. However, during the instant trial, J presented a written statement to the effect that “Around May 29, 2017, the victim, who entered the classroom, went to the classroom, went to the classroom, was aware of the victim’s parents, and the victim’s parents requested prevention of recurrence at school level. He reported the said facts to L, who is the principal at the time of the instant trial, and the principal talked with the Defendant separately, and during that process, the principal took care of the victim’s physical contact, and that the principal took care of unnecessary horses, and that the Defendant was unable to go to do so in the future.”

④ Comprehensively taking account of the above circumstances, there is a considerable doubt as to whether the Defendant committed an indecent act against the victim beyond her 's 's flurging off the victim' and her 'flurging off the victim'. 2) Even if the Defendant reported this to the assistant principal, such as G and H’s statement, there was a content about the Defendant's physical contact in the victim's statement at the time, and even if the content was reported to the assistant principal, the part about the physical contact with the victim's statement was deemed not to have been perceived as an indecent act by all the participants. In other words, at the time of the instant case, it is difficult to exclude the possibility of exaggeration in the process of the investigation into the instant case after 1 year thereafter.

3) ① H, E, and F submitted a written statement related to the instant case from D, E, and F, a witness on the date of the instant case, to J, but the said written statement is not kept as of what reason it is.3) D, E, and F, upon reporting the instant case around May 2018, around around one year after the date of the instant investigation, once again prepared a written statement. On July 2018, as stated in the facts charged in the instant case, the Defendant taken a photo that re-satisfed the victim, as if the Defendant were written in the instant facts charged.

② In light of the written statement written by the above witness, D, to the effect that "A defendant was asked whether the defendant reported the victim or not, and that he was not a good in several sequences," and that "B, the defendant was asked whether the victim was a victim's answer in the land part, and that he did not have any son, and that he continued and terminated this speech, and there was a talk that the victim would come back against our society. (b) The victim was sing down. (c) The victim was not only one time for the first time, but also for the first time, the victim was sing down and talked with the reflect while he was sing down..........", the purport that "C" was terminated on the land part of the defendant, and it was hard to say that the victim was a victim's answer, and that it was difficult to say that the victim was the victim's answer.

③ However, according to the E’s content itself, E does not directly refer to the indecent act of the Defendant against the victim, but only the content that E took place from the victim. In this Court, E stated in this Court that the Defendant was aware of the victim’s shoulder, and that he was directly engaged in covering the left shoulder and cutting off and using the arms. Furthermore, the F stated in this Court that “The Defendant’s shoulder while breaking the victim’s shoulder and mathing it,” unlike the content in this Court, it does not necessarily mean that the part in which “the Defendant was satisfing the victim’s shoulder.” In the written statement, the F appears to have expressed that it was written that the Defendant was satched with the victim’s shoulder and ma, and that it was written to the effect that “D” was written, and that it was written to the effect that “E” was written.

The difference between the above E and F’s respective statements and each legal statement is difficult to be deemed as a result of simple confusion.

④ On the other hand, D’s photograph taken around July 2018 at this Court stated that D and E did not wish to reproduce the photographer’s statement first, but GE was taken upon request by G to re-satisfy the situation at the time. As seen above, D’s photographer’s time and process of preparing a written statement, the time and process of photographing the re-satisfy, the person who prepared the written statement, the fact that the person who prepared the written statement is a child, and the difference between the content of the written statement and the legal statement, etc., the above written statement or photograph is likely to have been affected by G, H, etc., and it cannot be ruled out that it was affected by G, H, etc. during the preparation and photographing process.

4) ① The victim stated in the investigative agency that “the place in which the defendant committed an indecent act on the victim was directly adjacent to the passage connected to the Tranc. However, in this court, D met the defendant between the second and third floors of the stairs between the main office and the broadcasting room, and the defendant was later going forward to the same direction as the victim and witness,” the victim stated to the effect that “E met the defendant from the stairs above the main office and the printing room, and the defendant was going to go to the direction of the victim and witness,” and that “F was unsatisfying from the stairs above the main office, and was coming to the direction of the victim, but it was not clear that the defendant was coming to the opposite direction of the direction where the victim was the victim, and only passed from the corridor.”

② In light of the fact that the indecent act place in which the victim and witness made a statement is a child and more than one year has passed since the case occurred, it seems very exceptional that the place of indecent act and the major part of the situation where the victim and witness come to come to come to come to the are very different from the victim’s statement in the major part, and as seen earlier, it is difficult to believe that there are many parts that are inconsistent with the victim’s statement and the written statement as seen earlier.

3. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of facts constituting a crime, the court shall render a judgment of innocence under the latter part of Article 325 of the Criminal Procedure Act, and publicly announce the summary of the judgment under the main sentence of Article

Judges

The presiding judge, the Gimology judge

Judge Lee Sung-sung

Judges Lee private-young

Note tin

1) As to the reasons why G did not state this physical contact in this court, G made a statement to the effect that “the records related to counseling could have been disclosed to the public,” it is difficult to accept in light of the degree of the act indicated in the instant facts charged.”

2) On October 2018, a teacher of a victim’s club filed a civil petition with the citizen questioning that the details of confirming the truth of the instant case had not been accurately recorded at the time. In light of the response to the civil petition, it is stated that “The head of the school at the time of the instant case was aware of the minor situation in judging it as school violence and indecent act, and only the measures of caution such as prevention of recurrence and prohibition of access to the teacher’s oral warning for the guidance of the student life and the guidance of the teacher.”

3) As to the witness’s statement in this Court, G stated to the effect that this original was lost, and that the copy stored by I and H was the same.

참조조문

-형법 제58조 제2항

-형사소송법 제325조

참조판례

-대법원 2010. 7. 22. 선고 2009도1151 판결

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