(영문) 춘천지방법원 2017.10.25 2016노1006 | 리걸엔진

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(영문) 춘천지방법원 2017.10.25 2016노1006

강제추행

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The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. In fact, the Defendant, misunderstanding the legal principles, took charge of the victim’s arms, rhym and rhym and stalm, did not take charge of the neck and head of the victim, and took the kym and head of the kym in light of the victim’s shoulder and head, and took the kym of the kym, and does not constitute an indecent act in the crime of indecent act by force.

B. The sentence of the lower court’s improper sentencing (an amount of KRW 3 million) is too unreasonable.

2. Determination

A. 1) In determining the credibility of a statement after the first instance court of the relevant legal doctrine proceeded with the examination procedure, the existence of credibility should be assessed by taking into account all the circumstances that make it difficult to record in the witness examination protocol, including the appearance and attitude of a witness, the penance of a witness who is going to make a statement in an open court after being sworn in the presence of a judge, and the penance of a statement, as well as whether the content of the statement itself conforms to the rationality, logic, inconsistency, or rule of experience, or conforms to the third party’s statement.

On the other hand, the appellate court's determination of credibility of the statement made by the witness in the first instance court under the current Criminal Procedure Act is based on the records including the witness examination protocol in principle. Thus, in determining credibility of the statement, there is an essential limitation that the appearance and attitude of the witness at the time of the statement that can be called one of the most important elements in determining credibility of the statement can not be reflected in the evaluation of credibility.

Considering the difference between the methods of evaluating credibility between the first instance court and the appellate court, the first instance court’s judgment on the credibility of the statement made by the witness of the first instance court was clearly erroneous in light of the contents of the first instance judgment and the evidence duly examined by the first instance court.

In particular, the results of the first deliberation and the appeal are additionally made until the conclusion of the pleadings.

유사 판례

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