(영문) 서울고등법원 2006.12.14.선고 2004재노10 판결

A. On April 27, 1995, the Defendant, together with A, B, C, D, E, and F, was prosecuted due to the charge of violating the Act on the Punishment of Bodily Injury and Violence, etc., and the lower court convicted the Defendant of all the above facts charged and sentenced the Defendant to two years of imprisonment.

B. The defendant appealed as Seoul High Court 96No529, and the appellate court 1997.

2. On November 25, 1997, the judgment of the court below was reversed and the defendant was sentenced to one year and six months of imprisonment and two years of suspended execution (the judgment of the retrial), and the defendant again appealed to the Supreme Court Decision 97Do846, but the appeal was dismissed on November 25, 1997, and the decision of the retrial became final and conclusive.

C. After that, on November 10, 2004, this court rendered a decision on commencing a retrial on the grounds that each testimony of H’s witness G, and witness of the court below prior to the commencement of a new trial was proved to be false by a final judgment, and there was a ground for retrial under Article 420 subparag. 2 of the Criminal Procedure Act.

2. Summary of the facts charged in this case

When Co-Defendant A, C, D, and F (hereinafter referred to as the above "Co-Defendant B"), the Defendant 2 conspiredd with the above victims of the above-mentioned LM on April 2, 195, and 1: at the entrance of the G management in Gangnam-gu, Seoul, 186, the Defendant 5 met alcohol at the above-mentioned package for more than 2-lanes of the victim and carried out the above-mentioned 3-day drinking water at the end of the above-mentioned 4marcing, the Defendant 2 followed the above-mentioned 1marcing of the victim at the end of the above-mentioned 1marc, the Defendant 3marcing off the above marc, the victim 2marcing out of the above marc, the Defendant 1marced out of the above marc, the Defendant 2 marcing out of the above marc, the Defendant 2 marcing out of the above marc.

3. Judgment of the court below and a summary of the grounds for appeal

A. The judgment of the court below

Since the investigation agency, the Defendant asserted that the Defendant was drunk and did not memory, and that he was not involved in the act of violence by other Defendants, and denied all the facts charged. The lower court convicted the Defendant of the facts charged by using statements, such as G, N, H,O, I, P, etc. as evidence.

B. Summary of the grounds for appeal (1) mistake of facts

The Defendant, while under the influence of alcohol at the time of the instant case, did not either conspired with or participated in any act of violence with another perpetrator, but the lower court found the Defendant guilty of the facts charged by the testimony of G, N,O, etc. with no credibility. In so doing, the lower court erred by misapprehending the facts. (2)

In light of the fact that the defendant was a primary undergraduate student and agreed with the victims, and that the defendant was drunk and brought about contingent crimes of this case, the punishment of the court below (two years of imprisonment) is too unreasonable.

4. The judgment of this Court

A. As evidence consistent with the facts charged in the instant case against the Defendant, G, N, H,O, I, P, etc. made a statement at the court or investigative agency, it is examined in sequence as to whether this statement can be reliable or not.

(1) G’s statement was made in the prosecutor’s office and the court of the court below to the effect that “The person is the Defendant C, who was under the first investigation conducted by the police at the time, was designated as the Defendant,” and that “The person who was under the first investigation conducted by the police at the time was designated as the Defendant.”

However, according to the records of G evidence case (Seoul District Court 97Mo1210, 98Do2329, and Supreme Court 98Do3202), G initially set up eight (8) police officers including the defendant at the Seocho Police Station Office at the time of investigation, and pointed out A and B among those who were asked that "I would have used for the victim M&," and thereafter, the police officers were examined as " how two other persons were assaulted by the defendant," and "I will see that I would have 5 (AB) the shoulder of this case's Ma on the day of interrogation," and that "I would have been able to see that I would have been able to see the victim's face at the time of interrogation," and that "I would have been able to see that I would have been able to see the victim's Ma on the same day as I would have been able to see that I would have been able to see the victim's Ma on the same day."

In light of the circumstances revealed in the above facts of G’s statement, it is difficult to believe that G’s statement made in the prosecutor’s office and the court of original instance cannot be deemed that G’s statement made in its own witness.

(2) N’s statementN stated in the prosecutor’s office that “The Defendant who entered the second M is C, who entered the 185 cm red bank and Cheongbacle in 185 cm.”

However, N appeared as a witness of the court below, the court below, the court of first instance, and the perjury case, and stated that "N was unable to make a false statement that E and the defendant made a false statement because it was not good for the defendant to be able to make a witness of the court below, the court below, and the court of first instance, and the court of first instance." In light of the purport of the statement, N made relatively concrete and detailed and detailed, and it was consistent, N's statement to the effect that "It was not a witness of the court below to the extent that N appeared to have made a false statement to the effect that it was not a witness of the prosecutor's office and the prosecutor's office, since it was not good for the defendant to make a false statement to the effect that E and the defendant made a false statement to G, and that it was not a witness of the court below to the extent that N made a false statement to the effect that it was not a witness of this case," and that N's statement was not a witness of the court below to the effect that it was consistent with its purport."

However, according to the records of H’s perjury case (Seoul District Court Branch Decision 2000Kadan1553, Seoul District Court Decision 2001No9397), H’s above statement is hard to believe, as it was prosecuted for having made a false testimony against H’s memory, and was convicted of having made a false testimony on September 18, 200, by a court of conviction from the deputy branch of the Seoul District Court on December 2, 2001. The judgment became final and conclusive on December 2, 2001.

(4) The 0th statement was presented as a witness in the court of the court below to the effect that “The Defendant was fighting with the other party, and was written in M in the process.”

However, at the time of the police investigation, this statement made it clear that the victim M was made to be more than the wheels of the next passenger car at the time of the police investigation. The statement is consistent with the purport that "A was made to the effect that the victim M was made to be more than the wheels of the next passenger car at the court of the original trial prior to the commencement of a new trial, and that "A witness was present at the court of the first instance after the commencement of a new trial, as a witness, at the court of the first instance, in the case of perjury and the perjury, and at the time of the investigation of the perjury, the witness was present at the court of the first instance, and at the time, the defendant could not be divided into his own body because he was drunk, and at the time, the defendant was unable to be able to take advantage of his body due to the influence of alcohol, and at the time of his mother's meeting and request, the defendant testified that the defendant was written at the court of the original trial at the court of the first instance prior to the commencement of a new trial."

(5) P’s statement P made a statement in the Prosecutor’s Office that “the Defendant was on behalf of the other party,” and “the Defendant, who was first in the substitute, kidd against the ordinary person, and kid against the other party,” and stated as if the Defendant actively participated in the group fighting of this case.

P, however, P initially stated in the police investigation that “I am in p. B and I am in p.m., I am in p.m., I am in the court of first instance, and I am in the court of first instance and the court of court of first instance that I am in p.m., “I am in p.m., I am in p.m., and I am in p.m., so I am in p.m., I am in the court of first instance that I am in p.m., “I am in p.m., I am in the police, I am in my own body, I am in my own body, I am in my own body, I am in my own body, I am in my own body, I am in my own body, and I am in my opinion that I am in the court of first instance, I am in my own way I am in my opinion.”

(6) The statement I appeared as a witness in the court of original instance and made a statement in the court of original instance as follows: “A person who received yellow clothes immediately after M was written was fluored in a board set at his own length, and did not fluorly be fluored around, and the person who received yellow clothes was identified as the defendant.”

그러나 I는 위 증언 직후 피고인이 무엇을 입고 있었는지를 묻는 변호인의 신문에 “ 분홍색 남방하고 밑에 청바지인 것으로 기억합니다 ” 라고 진술하여 피고인의 당시 착의 상태에 관하여 앞선 증언과 모순되는 진술을 한 점, I는 이 사건 수사 당시 경찰이나 검찰에서 피고인이 이 사건 집단싸움에 가담하였는지, 또는 피고인이 구체적으로 어떤 행동을 하였는지에 관하여 전혀 진술하지 아니한 점, I가 당심 법정에 출석하여 “ 피고인이 당시 대련자세를 취하였는지 여부는 기억이 없으며, 증언 당시 다소 과장하여 진술한 점이 있다 ”, “ 피고인의 엉덩이를 발로 차서 넘어뜨렸는데 피고인이 아무 반응 없이 쓰러졌고, 다시 피고인의 얼굴을 세게 걷어찼다 ” 는 취지로 진술한 점, N은 “ 피고인이 쓰러져 있는 M 쪽으로 비틀거리며 걸어와 피고인을 밀쳐냈는데 그 때 I를 비롯한 동료 두 명이 피고인을 구타하였다 ” 고 진술한 점 등에 비추어 볼 때, 가 원심 법정에서 한 진술은 당시 정황을 과장하였거나 잘못된 기억을 진술한 것으로 보여 이를 믿기 어렵다 .

B. In addition to the above circumstances, there is no specific statement as to whom the Defendant used violence or how the Defendant was abused. According to the statement made by R in the court below, 0, and each statement, N, and E, each statement made by P in the trial court of the lower court, each statement made by the police, etc., and each statement made by the police in relation to the case of perjury, the Defendant was found to have been under the influence of alcohol at the time, so it was difficult for the Defendant to take part in the collective fighting of this case as to the degree that he was under the influence of alcohol and was under the influence of her body, so it was difficult for him to take part in the collective fighting of this case. In addition to these circumstances, the above statements as seen earlier cannot be considered as evidence for conviction of the facts charged against the Defendant because it is difficult to further believe.

C. In a false criminal trial, the proof of a crime must be based on evidence with probative value to the extent that there is no reasonable doubt, and even if there is no evidence to form such a degree, it is inevitable to judge the defendant's interest even if there is a doubt of guilt. As examined earlier, the evidence submitted in the argument of this case alone is insufficient to find the defendant guilty of the charge, and there is no other evidence to acknowledge it.

Therefore, even though the facts charged against the defendant should have been pronounced not guilty because there was no proof of the crime, the court below erred by misunderstanding the facts and finding the defendant guilty.

5. Conclusion

Therefore, without examining the grounds for appeal on the remaining grounds of unfair sentencing of the defendant, the defendant's appeal is with merit. Thus, the part of the judgment below against the defendant under Article 364 (6) of the Criminal Procedure Act is reversed, and it is again decided as follows.

6. Determination of the facts charged against the defendant

The summary of the facts charged of this case against the defendant is as stated in Paragraph (2), and as stated in Paragraph (4), the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, since there is no proof of criminal facts as stated in Paragraph (4).