2012 Gohap96, 2013 Highest 232 (Joint) homicide

2013. Consolidated order for attachment

A

Mobile Modernism, Madernism, Hundminism, and Hundmin (Public trial)

Attorney B (Korean National Assembly)

January 22, 2016

A defendant shall be punished by imprisonment for life.

An applicant for an attachment order shall be ordered to attach an electronic tracking device for 30 years, and matters to be observed in the attached Form shall be imposed during the period of attachment. Of the facts charged in this case, the murder shall be acquitted.

The summary of the judgment of innocence shall be publicly notified.

Criminal facts and the facts constituting the cause of the attachment order, 2013, 232, 2013, 17. 【Criminal Records】

On May 23, 2006, the defendant and the respondent for an attachment order (hereinafter referred to as the "defendant") were sentenced to imprisonment with prison labor for larceny at the Busan District Court on September 22, 2006, and the judgment became final and conclusive on September 22, 2006.

Criminal facts

The defendant living together for about four months from January 2002 to May 1, 2002 with the victim C (the age of 34 years, the age of 34 years, the missing on June 1, 2003) and from January 2002, but due to frequent assault by the defendant, the victim was living together with the victim D, and the victim was living together with the Ethmb in Daegu-gu Ethmbro, Daegu-gu, and the defendant was living together with the victim, and the defendant was making a telephone call to the victim after that time.

On June 1, 200, between 15:00 and 16:00, the Defendant, while making a telephone conversation with the victim, was salved with each other, followed the Defendant’s attempt to kill the victim, salving him, salving him to do so, and went to the Defendant’s residence in Daegu Seo-gu G.

From the above date to June 3, 2003, the Defendant killed the victim by an influence method in the place of residence of the above Defendant, used a khale (for trademark: No. 70cm, street 50cm, vertical 50cm, thickness 25cm) and then buried the body in a travel door (for trademark: No. 50cm, street 70cm, length 50cm, thickness 25cm) where the Defendant used the body, and buried the body in a fluence line near H 8 ridge in the vicinity of the name of the H influennam-gun of the Republic of Korea where the Defendant was living.

Accordingly, the Defendant murdered the victim. 【Facts causing the attachment order】

As above, the Defendant, who committed murder, is likely to recommit the murder crime.

Summary of Evidence

1. The defendant's partial statement in the eighth trial records;

1. The statements of witnesses F in the 14th trial records, the 15th trial records, the witness J in the 17th trial records, and the witness D in the 17th trial records;

1. Each letter [Attachment 44-1]

1. Each police statement of K, L, or M;

1. A report on investigation intelligence;

1. Each investigation report (the sequence 42, 56, 65 of the evidence list);

1. A written autopsy report and a written autopsy and appraisal report;

1. Identification identification statement (Evidence Nos. 27 of evidence list);

1. Responses for cooperation with investigation (the current status of subscription to the A workplace);

1. Records of seizure, records of search, records of verification of evidence, records of excavation of carcasses, photographs of verification of the scene of excavation [number 3, 6, 7, and 8 of the evidence list] 1. Criminal records as indicated in the holding: The application of Acts and subordinate statutes to inquiries into criminal records, etc. and case summary agreement auxiliary meetings [179 pages of the

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 250(1) of the Criminal Act (Appointment of Imprisonment for Arms)

1. Handling concurrent crimes;

Articles 37 (latter part) and 39 (1) of the Criminal Act / [Mutual homicide and Theft between the crimes on which judgment becomes final and conclusive]

1. Issuing an order to attach an electronic tracking device and matters to be observed;

Judgment on the assertion of the defendant and defense counsel under the main sentence of Article 5(3), Article 9(1)1, and Article 9-2(1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, Article 2(3) of the Addenda (Act No. 10257, Apr. 15, 2010)

1. Defendant and his defense counsel’s assertion

The Defendant had been at least KRW 30 million due to gambling. However, the Defendant was asked for a vinyl which was introduced from N in return for the stuffing of gambling with two male and female incompetuous name, and was found to be in Y, but later, the Defendant was aware of the fact that he was the dead body of the victim and did not abandon the body of the victim.

2. Determination

In light of the following circumstances, we can fully recognize the fact of killing a victim as stated in the facts constituting the crime in the judgment of the defendant, in view of the evidence duly adopted and examined by this court.

1. On September 15, 2010, according to the Defendant’s statement, the body was excavated and verified at the site of the Defendant. The body was identified at the location of the victim. The body was found at the time. 13 points out the body of the victim. However, on the body of the victim, the body was found in the form of an artificial cutting by tools or knife (Evidence No. 223 pages), and the body was found in the body of the victim. In light of the fact that the place where the body was discovered was found was found in the body of the victim’s body, it appears that the body was dead by another person. Although the Defendant did not murder, it is obvious that the body was dead by another person.

② The Defendant appears to have made a statement to the effect that he made a confession of the facts constituting the crime as indicated in the judgment against police officers. However, as seen earlier up to this court, he only abandoned the victim’s body, and did not murder the victim. ① The Defendant’s assertion clearly does not explain the circumstance why the body of the Defendant, which is in vinyl, became aware of the victim’s body, is the victim’s body. ② According to the Defendant’s assertion, the above two male persons appear to have murdered the victim. If so, it appears that the above two male persons directly laid the body, and it is very unusual that the Defendant requested the Defendant, who has no trust relationship with the above two persons, to leave the body of the victim’s body, and that it is too natural that the body of the Defendant, who was the victim living together with the Defendant, was too bad, it is difficult for the Defendant to believe that the above change is the victim’s husband, but it is also difficult for the Defendant to have made a statement from the Defendant’s husband’s name and the Defendant’s body’s 2.

④ At the last stage of the disappearance of the victim, F, a witness, consistently from the investigation by the investigative agency regarding the missing case of the victim to the present court, was unable to re-see the victim’s home while having received the Defendant’s phone and sent the Defendant. Since then, the Defendant was called from the Defendant, and the Defendant sent the victim’s home. The victim’s children also stated to the effect that F, at the time of the victim’s disappearance, told the victim to the same purport as above.

⑤ In the course of investigation by an investigative agency regarding the disappearance of a victim, the Defendant also recognized the fact that the victim was sent to Daegu around June 2003 (Evidence Records 980 pages).

④ In light of the contents of the call between the Defendant and the victim, the Defendant and the victim were provided with multiple calls until June 3, 2003, but the contact between the Defendant and the victim was interrupted since June 3, 2003. It appears that this is due to the fact that the Defendant was aware that the contact with the victim was not made with the victim. As seen earlier, it is reasonable to view that the victim’s disappearance and death were related to the Defendant.

7) On September 1, 2011, the Defendant was sentenced to 15 years of imprisonment with prison labor due to murder, concealment of the dead body, etc. at the Busan District Court, and the judgment became final and conclusive. The crime of murder and concealment of the dead body in the above conviction was committed by the Defendant by killing the victim P, moving the body of the said victim to the YI, she was exempted from all of the above victim’s body, and concealed the body of the said victim by covering the body with soil and grass on the body of the said victim. In particular, the method of committing the crime of concealment of the dead body of the said conviction was similar to that of asking the body of the said victim into mountain. In particular, with respect to the crime of concealment of the dead body of the said conviction, the place where the Defendant laid the body of the said victim away from the place where the body of the said victim was located is extremely adjacent to the place where the body

1. Scope of sentencing: life imprisonment;

2. Scope of recommendations)

[Determination of Punishment] homicide, Type 2 (Ordinary homicide)

[Special Aggravations] - Aggravated Elements: Destruction of and damage to a dead body, and there is no reflective nature (excluding simple denial of conduct)

[General Aggravations] - Aggravations: Abandonment of a dead body

[Scope of Recommendation] 15 years or more (the field of special aggravation)

3. Determination of sentence: The crime of this case committed by life imprisonment is deemed to have been committed by murdering the victim who was a female living together with the victim and burying the body of the victim in Ansan, and the nature of the crime is extremely poor in light of the contents and results of the crime, and the circumstances after the crime;

In light of the fact that the body of a victim was found at the time seven years have elapsed since the crime was committed, the defendant denies all the crime, and that there was no witness for the crime of this case, the method of murder cannot be specified, but there was a fact that the defendant physically assaulted the victim during the period in which the victim was living together with the victim, and that there was a trace of cutting the body and artificially cut the body of the discovered victim, the method of murdering the victim is sufficiently cruel. The method of murdering the victim seems to have suffered serious fear and physical pain, and eventually, the victim was lost to the life that could not be altered. Moreover, as the victim’s bereaved family members were sent time to prevent the victim from being aware of the victim’s life or death for more than seven years, and the victim’s bereaved family members cannot be said to be able to be able to reach mental shock and vision because the victim was aware of the murder.

Nevertheless, the defendant was entirely aware of the missing of the victim in the investigation by the investigative agency regarding the missing of the victim. However, there is no question that the defendant, who led the victim to a criminal investigation, led the victim to the confession of his/her own crime and re-afusing the confessions after the investigation was commenced, and there is no completely contrary to the investigation process and the law of this court.

Moreover, the Defendant had the record of criminal punishment more than 15 times, including three times of imprisonment or suspension of execution of imprisonment without prison labor, prior to the instant crime. In particular, on September 1, 2011, the Busan District Court sentenced the Defendant to 15 years of imprisonment with prison labor due to murder, concealment of dead bodies, etc. In addition, taking into account the following circumstances, the Defendant’s age, environment, family relationship, and circumstances after the instant crime, even if considering equity with the case where a judgment is rendered simultaneously with larceny, it is reasonable to impose heavy liability corresponding to the instant crime by isolation of the Defendant from society, defending the society of the Defendant from such crime, defending the victim of the victim during his life, and having the time to reply to his mistake and to reflect his/her wrong judgment. In addition, the sentence shall be determined as follows: (a) the Defendant’s age, environment, family relationship, and circumstances.

However, since there is no possibility of parole for the defendant according to the current legal system, it is necessary to issue an order to attach an electronic device for 30 years in preparation for the case of parole, and impose the matters to be observed such as the attached list to the maximum extent possible.

The acquittal portion

1. Summary of the facts charged in the case of 2012 Gohap96

From November 26, 2007 to 23:00, the Defendant drinked alcoholic beverages from the main point of "R in Busan Jung-gu Q." On November 27, 2007, the Defendant was under the influence of alcohol from the main point of "R in Busan Jung-gu Q." On November 27, 2007, the Defendant was under the influence of alcohol from the main point of "the time off the new wall in the vicinity of the new wall, and from the area of "Seong-dong, Seo-gu, Busan." On the same day, around 04:00, the Defendant was under the influence of alcohol from "T in the middle-gu, Busan."

Therefore, the Defendant, while making a trial expenses with the victim, tried to kill the victim by cutting down the victim's bucks in a timely manner, caused the victim to sit on the floor by walking the part of the bucks of the victim's spacks, and killed the victim by cutting the knife in the knife knife (7m in the knife length) on the knife on the knife, with the knife knife knife on the knife on the knife on the knife, and killing the knife and knife knife knife knife on each left part of the victim.

2. Determination on admissibility of evidence

1) Each statement made by the defendant at the police station, which appears to be written in the purport of the confession of the above facts charged, is admissible as evidence because the defendant denies its content.

2) Also, the witness’s statement at the 11th trial date is admissible as evidence, only when it is proved that the statement was made under “ particularly reliable circumstances” pursuant to Article 316(1) of the Criminal Procedure Act, as a statement at the trial date of a person other than the defendant, which contains a statement (or a partial statement) that led to the confession of the defendant (see, e.g., Supreme Court Decision 2008Do6013, May 14, 2009).

In other words, in order for such investigator's testimony to be admitted as evidence, the prosecutor must prove that the defendant's statement at the time of the investigation was made under the "specific and external situation that can guarantee objectivity and fairness to the extent that it is the same as the statement made in the presence of a judge", and in particular, the prosecutor must prove that the suspect's interrogation protocol prepared by investigation agency other than the prosecutor is admissible as evidence without considering the substantial and formal authenticity of the protocol in Article 312 (3) of the Criminal Procedure Act, in consideration of the purport that it can be admitted as evidence only when the defendant recognizes the contents of the protocol, if the investigator was an investigation agency other than the prosecutor, it should be more strict and examined.

However, in light of the following circumstances acknowledged by the record, i.e., ① the amount of money kept in custody, the amount of money kept in custody, the amount of money kept in custody repeatedly for the defendant, and ② the amount of materials on the case of murder in Busan only, it is difficult to view that the statement made by the defendant against him was made in a particularly reliable state, and accordingly, the statement made in this part of the statement made in the confession statement of the defendant is inadmissible.

3. Judgment on the existence of criminal facts

A. Relevant legal principles

The conviction in a criminal trial ought to be based on evidence with probative value, which leads a judge to have a conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it is inevitable to determine the defendant's interest (see, e.g., Supreme Court Decision 2005Do8675, Mar. 9, 2006).

Meanwhile, in the case of a crime with heavy statutory penalty, such as murder, even in the case of a crime without direct evidence, a conviction may be found only by indirect evidence without direct evidence. However, in such a conviction, a careful judgment is required based on indirect evidence related to the facts charged. As such, in recognizing indirect facts that form the premise of a principal fact based on indirect evidence, such proof ought to reach the extent that it does not allow a reasonable doubt. One of such indirect facts ought to be inconsistent and inconsistent, and ought to be supported by logical and empirical rules and scientific rules (see, e.g., Supreme Court Decision 2010Do10895, Sept. 12, 2010).

B. Determination

In light of the above facts charged, inasmuch as the Defendant denies the above facts charged in this court, and there is no statement of confession that is admissible as evidence, there is insufficient evidence or circumstantial evidence submitted by the prosecutor alone for the following reasons to find the Defendant guilty of the above facts charged, and there is no other evidence to prove otherwise. According to the 10th court statement and the copy of the Emergency Arrest Register (Evidence 117 pages), it is confirmed that the Defendant was in the vicinity of the same criminal place as the date and time stated in the above facts charged, and there is no fry in the vicinity of the crime place mentioned in the above facts charged, and unless there is any special circumstance, it is difficult for the investigative agency to recognize fry. As a result, according to the Defendant’s point of view, it is difficult for the Defendant to recognize fry in the vicinity of the crime place mentioned in the above facts charged. As a result, it is nothing more than indirect or circumstantial evidence related to the above facts charged, and thus, it lacks probative value, and there is no value higher than the evidence to reinforce the credibility of the Defendant’s confession.

② According to the Defendant’s land category, V, which was investigated by the investigative agency, submitted a new attack, etc. to an investigative agency while making a statement that there was a laundry that the Defendant left, and among which, during which the new attack, there was a reaction to train the bloods (Evidence No. 1:266 pages). However, it cannot be readily concluded that the bloodstain was the bloods of the victim due to the impossibility of genetic identification about the said bloods (Evidence No. 1:266 pages). In particular, even if the Defendant’s statement at the police station is based on the sufficient level taken off at the scene (Evidence No. 1:273 pages of the evidence record), it is difficult to view the above new attack as evidence consistent with the above facts charged. Also, W which was investigated by the Defendant’s land category as well as W, which was tried by the investigative agency to leave clothes of the Defendant at the scene of the crime, cannot be said to have been used as a tool for the above evidence and its probative value in light of the above circumstances.

4. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of a crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced under Article 58(2)

Judge of the presiding judge;

Judges Geung-dilution

Judgment of the Supreme Court

1) Since the crime of murder in the judgment is in the relation of larceny for which the judgment becomes final and conclusive and concurrent crimes under the latter part of Article 37 of the Criminal Act, the sentencing criteria not applicable,

The sentencing criteria shall be examined and referenced if they are not the law.