Defendant 1 and three others

Defendants

Hosi and 1 other

Attorneys Sun-nam et al.

Suwon District Court Decision 2008Gohap45,64(Joint), 73(Joint), 117(Joint) Decided July 16, 2008

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment with prison labor for a year and six months, and by imprisonment with prison labor for a year.

The number of detention days before the pronouncement of the judgment below shall be 24 days per defendant 1, and 181 days shall be included in the above punishment against defendant 2.

However, for two years from the date this judgment became final and conclusive, the execution of each of the above punishments against Defendant 1 and 2 shall be suspended.

Of the facts charged in the instant case, the Defendant 1 and the Defendant 3 and the Defendant 4 are acquitted.

1. Summary of grounds for appeal;

In light of the fact that the Defendants’ statements were different from the victim’s statements, what the Defendants had known before the victim, Nonindicted 2 and 3’s statements to the effect that they did not speak with the victim for a period of one hour with the victim, and Nonindicted 4, a witness, made an overall statement or confused with other cases, and it is different from the Defendants’ statements in terms of the fact that the Defendants got on the way when they moved with the victim, which was installed at Suwon High School to prevent vehicle from entering and leaving at night. Although it is not difficult to see the Defendants from the front door, the Defendants’ statements were not consistent with the method of entering and leaving the high school, and Nonindicted 2’s statements are also inconsistent with the motive and consequence that the Defendants could not easily be able to prove that there was any inconsistency between the victim and the victim’s statements in the process of arresting the victim and the victim’s statements. Although Nonindicted 3 did not know that there was any lack of consistency with the motive and consequence that the Defendants did not have any contact with the victim’s statements in the process of arresting the victim.

However, although the Defendants made a confession from the investigative agency, they made a false confession through the pressure and return of the investigative agency.

Nevertheless, the court below found the Defendants guilty of bodily injury, and the court below erred by misapprehending the facts, thereby affecting the conclusion of the judgment.

2. Determination

A. Summary of the facts charged as to the Defendants’ injury or death

피고인 1, 3, 4 및 공소외 5는 공소외 6을 추궁하였지만 공소외 6이 횡설수설을 하고 2만 원도 찾지 못하자 공소외 6이 절취한 것이 아닐지도 모른다는 생각을 하던 중 피고인 3, 공소외 5가 2007. 5. 13. 처음 만난 노숙자인 피해자 공소외 1(대법원 판결의 공소외인)(여, 15세)과 수원역 대합실에 있는 GS 25시 편의점 등에서 놀던 중 공소외 5가 치마를 입고 있어 계속 춥다고 하여 피고인 3이 바지로 갈아입으라고 하자, 피해자가 치마가 예쁘다면서 안 입으려면 자기에게 빌려달라고 하여 피고인 3, 공소외 5가 피해자에게 ‘너랑 같이 다닐 것도 아닌데 빌려준 후 니가 째면 어떻게 하냐’고 하니 피해자가 그렇다면 2만 원을 주겠다고 하여, 피고인 3, 공소외 5가 편의점 밖에 있는 피고인 1, 4에게 ‘쟤가 치마를 빌려주면 2만 원 준데, 할까, 말까’라고 하면서 이야기를 하던 중 혹시 2만 원을 훔쳐간 애가 피해자가 아닌가라는 이야기가 나왔다. 그 후 피고인 1, 3, 4 및 공소외 5는 2007. 5. 14. 02:00경 수원역 대합실에서 피해자에게 ‘2만 원을 가져갔는지’ 추궁하다 수원역 화장실에서 나오는 피고인 2와 함께 피해자를 데리고 밖으로 나가는데, 그때 수원역에 있던 공소외 2, 3도 피고인들과 공소외 5 일행에 합류하여 피해자를 때릴만한 사람의 왕래가 없는 어두운 곳을 찾아다니다가, 같은 날 03:00경 수원시 권선구 매교동 250에 있는 수원고등학교로 들어가서, 피고인 1은 주먹과 발로 피해자의 얼굴을 포함하여 온몸을 때리거나 걷어차고, 피고인 3은 도망가지 못하도록 피해자를 쪼그려 앉게 한 후 손으로 피해자의 뺨을 때리고 발로 피해자의 얼굴, 어깨를 걷어차고, 이어서 피고인 2는 주먹으로 피해자의 얼굴을 때린 다음 발로 피해자의 허벅지, 팔, 등 부분을 걷어차고, 피고인 2, 3이 담배를 피우기 위하여 뒤로 빠져 있는 사이에 피고인 4와 공소외 5는 함께 심한 욕설을 하며 손으로 머리채를 잡고 흔들며 주먹으로 얼굴을 수회 때리고 발로 피해자의 얼굴을 걷어차고, 계속하여 공소외 2, 3도 나서서 역시 주먹과 발로 피해자의 온 몸을 때리고 걷어 차 피해자가 폭행을 견디지 못하고 쓰러지자, 공소외 5는 피해자의 얼굴을 발로 밟는 등 수십 분 동안 피해자의 온몸을 마구 때려 피해자로 하여금 그 자리에서 외상성 뇌경막하 출혈에 의한 심폐정지로 사망에 이르게 하였다.

B. The judgment of the court below

Non-Indicted 2 and Non-Indicted 3 made a statement to the effect that they had been involved in the crime of bodily injury until it became final and conclusive, in whole or in part, it is reasonable to deem that there was a young juvenile other than himself, even in light of the motive of the crime committed by Non-Indicted 2 and Non-Indicted 3. Furthermore, although Non-Indicted 2 made a false confession in this court, it is reasonable to deem that he made a statement that he had not committed the crime but made a false confession. However, on January 10, 2008, Non-Indicted 2 made a statement in detail that the Defendant et al. jointly committed the crime of bodily injury, and Non-Indicted 3 made a statement to the prosecution on the fact that the conviction of him became final and conclusive on December 22, 2007, and did not have any other interest. If Non-Indicted 4 made a statement to the effect that he had committed the crime from the victim’s singing, etc. after the victim’s death, the above evidence alone does not suffice to recognize the crime by each of the Defendants.

In light of the above five persons’ legal attitude and the contents of the statement, it is difficult to recognize that five persons were in accord with each other only by the prosecutor’s inquiry into the same time, and there is no reasonable ground to believe the above five persons’ confessions, taking into account the following: (a) the risk of conviction by confessions and the prosecution’s waiting for several hours; and (b) the procedural illegality that the video recordings commenced from the time the confessions were made; and (c) the Defendants were unable to obtain sufficient assistance from their parents, etc. and to achieve psychological stability; and (d) there is no reasonable ground to believe that the above five persons’ confessions statement was made. In light of the above five persons’ legal attitude and the above five persons’ statement, it is difficult to recognize that the false statement was made without permission by the prosecutor only once it is recognized to have experience and ability to recognize the age or investigation and society; (b) it is difficult to deem that there is confusion with the crime of joint injury to Nonindicted Party 6 and that there is any false confession or false confession as to it is not easily inconsistent with the legal doctrine.

In this context, the fact that the Defendant, etc. are free to make statements during the investigation period is more so in light of Nonindicted 7 and 8, etc. of the witness.

If so, the above evidence is found to have been made under particularly reliable circumstances, and there is no other reasonable doubt as to the facts charged against the death or injury in the judgment of the Defendants, and in full view of each of the evidence in the judgment, the above evidence is proved and recognized.

C. Determination of party members

In order to determine the facts charged of the death resulting in bodily injury, first of all, it is necessary to examine the whole progress of the case, and then briefly, the evidence adopted by the court below in finding the guilty of this part of the facts charged shall be examined in order.

(1) The overall progress of the case

On May 12, 2007, at around 06:00, the victim non-indicted 6 (the victim non-indicted 6 (the age of 24) was injured and the victim non-indicted 1 (the age of 15) was discovered at the entrance of the main entrance of the Suwon High School around 05:30 on May 14, 2007.

(A) The previous case

According to the first investigation conducted from May 207 to May 22, 2007, the Suwon District Court Decision 2007Da215 decided August 22, 2007 and Seoul High Court Decision 2007No1972 decided December 14, 2007, Nonindicted Party 2 was sentenced to a fine not exceeding 1, 4 (20) and 207No1972 decided on May 12, 2007, jointly with Nonindicted Party 1, 4, 20 name-free boxes ( separate names of pigs, South, and 20), and Nonindicted Party 6 (24 years old), and Nonindicted Party 2 and 3 were sentenced to a fine not exceeding 20 years of imprisonment with prison labor, leading Nonindicted Party 1 to the death of the victim at the lower parking lot, and Nonindicted Party 2 and 3 were sentenced to a final punishment of the victim at the second instance of the second instance on May 12, 207.

(B) The instant case

Around January 2008, the second investigation was initiated and prosecuted. The lower court found Defendant 1’s Defendant 1’s violation of the Punishment of Violence, etc. Act (joint injury) against Nonindicted 6, and guilty of the Defendants’ injury to Nonindicted 1.

(2) Defendants’ confession statement at the prosecutor’s office

Although the Defendants led to the confession of the facts charged against the victim's injury in the prosecution, the Defendants are arguing that the above confession statement is false in the original trial and the trial court.

The mere reason why the confession, etc. at the prosecution is different from the statement in the court cannot be deemed to be the reason that the credibility of the confession is doubtful. In determining the credibility of the confession, considering the fact that the contents of the confession statement per se are objectively rational, what is the motive or reason of the confession, what is the motive or reason of the confession, and what is the circumstance leading up to the confession, and whether there is any conflict or inconsistency with the confession among the circumstantial evidence other than the confession, it should be determined whether there is a situation in which the confession of the defendant would give a rational doubt about the grounds prescribed in Article 309 of the Criminal Procedure Act, or the motive or process of the confession (Supreme Court Decision 2002Do3924 Delivered on September 26, 2003).

From this point of view, the credibility of each confession statement before the prosecutor of the Defendants is examined.

(A) The defendant's confession and reversal process

Defendant 1 denied the first crime at the prosecutor’s office (208 type 7468, 208 type 8702 type 209 type 3). However, Defendant 1 made a confession (201 type 3, 209 type 4) (the first public trial record of the lower public trial) (the first public trial record of 300 type 7) that “it would be 80 times again denied the first public trial record of the lower public trial, but the first public trial record of 48 type 3) that could not be denied if the prosecutor did not know that there was any other person’s statement, 300 type 5 type 8 (the second public trial record of the first public trial record of the lower public trial) and 308 type 4 (the second public trial record of the first public trial record of the lower public trial of 305 type 70,000).”

Considering the fact that the Defendants made confessions, although they are at bar, can have the right to be faced, and they made confessions at a disadvantage if they could be denied the facts of the crime, the Defendants still have ageed and did not have the help of their family members or their guardians. In particular, Defendant 2 appears to have decided in the prosecutor's office that there was no person to defend themselves from the defect at the time of video recording in the prosecutor's office, although the money was made in the video recording in the prosecutor's office, it seems that there was no person to defend themselves from the defect, among the Defendants, there was a mistake that the other Defendants had already been led to the confession of the crime and under investigation by the prosecutor, and there was a little fact that the prosecutor might have the right to receive the confession if they have led to the confession during the investigation process.

(B) The relationship between the Defendants and the victims and the background leading up to the Suwon High School

피고인 1은 검찰 제1회 피의자신문조서에서 “ 피고인 4 등으로부터 ‘이년이 옛날에 같이 어울려 다니던 애인데 우리들의 옷과 돈을 가지고 도망을 갔던 년’이라고 들었다.”, “수원역 대합실에서 공소외 5가 피해자와 어깨동무 형태를 취하였고, 피고인 2가 피해자의 뒤쪽 옷을 붙잡았고 나머지는 피해자를 따라서 수원역 뒤편으로 나가서 으쓱한 곳을 찾던 중 공소외 2가 삼촌과 공소외 3이 삼촌을 만났다.”고 진술하고 있다(증거기록 202쪽, 203쪽). 피고인 2는 검찰에서의 영상녹화 및 제1회 피의자신문조서에서 “피해자는 그 때 처음보았다.”, “친구들이 여자아이를 데리고 흡연실쪽으로 가면서 따라 오라고 하여 따라 가다 어떤 친구가 ‘여자아이가 도망가지 못하게 잡아라’고 하여 제가 여자 아이의 상의 뒤쪽을 잡고 수원역 어두운 곳으로 갔는데 사람들이 자주 지나다녀 계속 자리를 옮기다 보니 수원고등학교까지 가게 되었던 것입니다.”라고 진술하고 있다(증거기록 262쪽, 263쪽, 264쪽). 피고인 3은 검찰에서의 영상녹화 및 제1회 피의자신문조서에서 “피해자는 그 때 처음 보았던 아이이다.”, “피해자가 도망을 갈 수 있기 때문에 저와 공소외 5는 피해자 앞에 서고 나머지 친구들은 피해자 주변과 뒤에 서서 흡연실까지 데리고 갔습니다.”, “흡연실에서 피해자를 추궁하다 피해자를 데리고 계단을 내려온 이후 롯데리아 건물쪽으로 내려와서 음침한 곳을 찾아 다녔으나 수원역 근처에는 마땅한 곳이 없어 세류동 쪽으로 걸어가면서 음침한 곳을 찾아 다니던 중 학교를 발견하고 학교로 들어갔던 것입니다.”라고 진술하고 있다(증거기록 309쪽, 315쪽, 316쪽). 피고인 4는 검찰 제1회 피의자신문조서에서 “피해자는 그 날 처음 보았던 아이입니다.”, “처음에 때린 곳은 수원역 부근 여관 주차장이었고, 이후 죽은 애를 데리고 대합실에 되돌아온 후 수원고등학교로 가서 때렸습니다.”, “수원역은 아는 사람도 많고 철도경찰이라고 공안들도 있고 해서 때리기가 곤란해서 장소를 옮겼습니다.”라고 진술하고 있다(증거기록 336쪽, 341쪽). 공소외 5는 검찰 제1회 피의자신문조서에서 “피해자는 그 날 그 때 처음 보았던 사람입니다.”, “저와 피고인 4가 죽은 애를 데리고 흡연실로 가서 돈을 훔쳐간 사실이 있느냐고 따지다, 제가 잠시 화장실에 다녀오는 사이에 피고인 4가 그 죽은 애를 한 두 대 때린 후 보냈다고 하였습니다. 그래서 제가 다시 잡아서 얘기 하겠다고 하며 피고인 3이랑 함께 그 죽은 애를 찾으러 가보니, 그 애가 어떤 아저씨랑 가고 있어서 저희들이 계속 따라가면서 ‘언니 언니’라고 불러 세워 수원역 근처 상호불상 여관 주차장에서 그 죽은 애에게 ‘그 아저씨 누구야’라고 물으니 그 죽은 애가 ‘조건 만남 할 사람이다. 저 사람에게 너희들이 나를 때리는 것을 막아달라고 부탁하였다’라고 대답하며 제 돈을 가져갔다고 하였다가 가져가지 않았다고 하는 등 말을 계속 바꿔 제가 화가나 그 애를 때리기 시작하였습니다.”, “수원역으로 돌아가는 도중에 제가 죽은 애에게 가서 거짓말하지 말아라고 주의를 줬는데도 불구하고 계속 거짓말을 하길래 화가 나서 수원역에 도착한 후, 공소외 2가 삼촌이 그 애에게 돈 훔쳐갔느냐고 물어보았는데 훔쳐가지 않았다고 거짓말하여 공소외 2가 삼촌이 그 애를 때렸고, 저희에게도 때려도 좋다고 하여 저, 피고인 1이, 피고인 4언니가 그 애를 때렸습니다. 아참, 저희들 말고도 이름을 모르는 한 명이 더 현장에서 주먹으로 죽은 애를 때렸고, 고깔모자 모양의 공사표지판으로 죽은 애의 머리 부분을 때렸고, 저는 단화 모양의 구두를 신은 발로 피해자의 얼굴을 밟았습니다. 그리고 수원역 뒷문을 통하여 조금 전 상호불상의 여관 주차장 방향으로 나와 때릴 곳을 찾던 중 사람이 너무 많아 주변을 돌아다니던 중 수원고등학교까지 가게 되었습니다.”라고 진술하고 있다(증거기록 468쪽, 470쪽).

However, there is a question as to whether the Defendants and Nonindicted 5’s statements were assaulted first in the entrance parking lot near the river basin, and there is a difference between the Defendants’ behavior and the victim’s situation in which they became to the Suwon High School. In particular, Nonindicted 5’s statements are too far away from the Defendants’ statements, and the motive and circumstance of the assault against Nonindicted 6 are extremely insufficient to find out that they were assaulted. Furthermore, considering that the Defendants were able to find out a place where the victims could have been able to find out, the hours between the Defendant’s speech from the river basin to the Suwon High School were 02:0-00 to 00, and the distance was 1.52 km in a straight line, and Nonindicted 52 km in a normal distance, and Nonindicted 5’s statement is difficult to find out the place where the Defendants appeared to have been able to have easily known from the Defendant’s body at the Seoul High Court’s lower court’s location and 270 minutes in a new parking lot.

(C) Statement concerning circumstances after the arrival of the Suwon High School

Defendant 1 stated in the first interrogation protocol of the prosecution that “I have entered the same place. I will not know what I would like to be the victim? I would like to see that I would have been able to see the victim’s 1 at the time when I would like to see the fact that I would like to see the victim’s 4 at the high school, and that I would like to see the victim’s 1 at the time I would like to see how I would like to see the victim’s 1 at the time when I would like to know the victim’s 4 at the high school. I would like to see how I would like to see the victim’s 1 at the time I would like to see the victim’s 7th time I would like to see the victim’s 1 at the time I would like to see the victim’s 1 at the high school, and I would like to see the victim’s 1 at the time I would like to know the victim’s 3th time I would like to know.”

However, the defendants' statements are doubtfully doubtful in light of the following: (a) how they come to and go to any of the front and rear doors in Suwon High School; (b) how they opened to any of the front and rear doors; and (c) the situation after arrival; and (d) whether they seem to be contradictory or unclear; and (c) whether they appear to have made a statement in accordance with the actual circumstances only after showing the photographs provided by the investigative agency; and (d) there are no shapes of the defendants on the unmanned camera, which was installed in the front and rear door of the Suwon High School at that time, and the sound being satis at all not heard (Evidence Nos. 5, 33 pages).

(d)Statement of items discovered at the site;

At the site of the Defendants’ fingerprints, oil, and other scams were not found at all. Defendant 2 stated that the Cheongba and scams discovered at the scene of the instant crime were Defendant 1 (Evidence Records 269 pages, 270 pages), and reversed Defendant 1’s statement that the Cheongba did not constitute Defendant 1 (Evidence Records 380 pages).

(3) Nonindicted 2’s statement

기록에 의하면, 공소외 2는 피해자에 대한 살인 등 종전 사건으로 조사를 받을 때 공소외 3 이외에 모르는 꼬맹이 즉 남자, 여자 각각 한명과 함께 수원고등학교에 갔었고, 꼬맹이들은 피해자를 때리지 않았다고 진술하였는데, 뒤늦게 이 사건이 문제가 되어 2008. 1. 10. 검찰에서 피고인들 역시 피해자를 살해한 공범이라고 하면서 “꼬맹이라고 불리는 아이들 2명, 그리고 피고인 1과 피고인 1의 애인 피고인 4가 등 총 6명도 함께 피해자를 폭행하였습니다.”라고 진술하고 있고(증거기록 535쪽, 536쪽), “경찰과 검찰 및 공판정에서 수원역 광장 쪽 출구를 통하여 지하보도를 건너서 수원고등학교로 갔다고 진술하였는데, 저는 당시 술을 먹은 상태였기 때문에 정확히 기억이 나지 않았지만 경찰에서 조사를 받을 때 공소외 3이 광장 쪽 출구로 나와서 지하도를 건넜다길래 그걸 보고 진술을 한 것이고, 사실 정확히 어느 출구로 나왔는지는 기억이 나지 않습니다.”라고 진술하고 있는바(증거기록 537쪽), 공소외 2의 진술은 일관성이 없고, 피고인들의 진술과도 상이하여 그 신빙성에 의심이 든다.

In addition, the circumstances after the arrival of the Suwon High School provide that "I will go beyond the fence," and that "I will see that I will go beyond the fence, and that we will go beyond the fence," and that we will reverse their own statements in a timely manner, such as "I will see that I will go beyond the iron door," and that "I do not have any such memory," and that "I would like to say that I would like to say that I would like to say that "I will not accurately memory until I want to assault the victim, and that I would like to see if I would like to do so, and that I would like to say that I would like to say that I would like to say that I would like to say, "I would like to say I would like to tell the victim, and that I would like to say that I would like to say that I would go beyond the fence, and that I would like to see if I would like to see the defendants' statements and whether I would like to see whether there is any doubt that the defendants and the non-indicted 5 were the victim.

On the other hand, on January 10, 2008, Non-Indicted 2 led to the prosecution's arrest of Non-Indicted 3 on this case and arrest of the police first, and confirmed that Non-Indicted 3 was guilty of the crime by stating that "I would like to deduct all of the police and that I would see that I would see that I would see that I would like to take responsibility for and put all of the necessary goods, etc. during the period of imprisonment with prison labor, and that I would like to commit the crime in which I would like to commit the crime in which I would like to commit the crime in which I would like to know that I would like to know that I would like to know that I would like to live in the old life at the time, and that I would like to have committed the crime in which I would like to know that I would not know that I would like to know that I would like to know that I would like to know that I would not know that I would like to know that I would like to know that I would not know that I would like to know it."

(4) Nonindicted 3’s statement

공소외 3은 공소외 2의 피해자에 대한 살인 등 종전 사건으로 조사를 받을 때와 법정에 출석하여 “탤런트를 닮은 꼬맹이와 그 남자 친구와 함께 수원고등학교에 갔다.”고 진술하였는데, 이 사건 원심 법정에서는 “남자는 공소외 2가 빼고 두 명, 여자는 두 명이었다.”, “그 당시에 공소외 2와 꼬맹이 네명이 갔다.”, “이전에 수사나 재판을 받을 때 남자 둘, 여자 둘이라고 얘기했어요.”, “수원고등학교에 가던 날 우연히 공소외 2를 보고 같이 안가고 좀 떨어져서 갔어요.”라고 진술하고 있어, 공소외 3의 진술은 일관성이 없고, 피고인들 일행을 따라 약 1시간을 걸어 갔다고 하면서도 수원고등학교까지 같이 간 일행의 숫자를 정확히 알지 못하고 있어 쉽게 믿기 어렵다.

또한, 공소외 3은 공소외 2에 대한 종전 사건에서 조사를 받을 때에는 “ 공소외 2만 닫아놓은 철문으로 넘어갔고, 꼬맹이 일행이 담으로 넘어가자고 해서 먼저 넘어가고 그 다음 피해자가 넘어가고 제가 마지막으로 넘어갔습니다.”, “뺨을 때리는 소리가 들렸는데 꼬맹이들이 때리는 것 같았습니다.”라고 진술하였고, 위 사건으로 법정에서 증언하면서 “꼬맹이들이 발로 차고 얼굴 때리는 등 하였고, 공소외 2는 그냥 옆에 서 있기만 하였습니다.“라고 진술하였는데(증거기록 183쪽, 704쪽, 708쪽), 이 사건 원심 법정에서는 “ 공소외 2는 철문으로 들어가고, 나머지 애들은 담으로, 저도 담으로 갔어요.”, “ 공소외 2랑 애들이 어떻게 때렸는지는 몰라요. 거기가 캄캄 했었어요.”라고 진술하고 있는바, 피고인들, 공소외 5의 각 진술과도 모순되고, 피고인들 일행이 쉽게 넘을 수 있는 철제문을 넘어가지 않고 굳이 담을 넘어갈 특별한 사정이 있어 보이지 않는 이 사건에 있어서 피고인들과 피해자가 담을 넘어갔다는 공소외 3의 진술은 쉽게 납득이 가지 않는다.

Meanwhile, Nonindicted 3 made a statement to the lower court that “Nonindicted 2 and the Defendants went to the Suwon High School,” and at the last time in the court of the first instance, it is difficult to view Nonindicted 3’s statement in the court of the lower court as evidence of guilt against the Defendants. (The Defendants did not believe that they died of the victim in the court of the lower court) and reversed the statement in the court of the lower court, and “In an investigative agency and the court of the lower court, they did so as to make a false statement because they would be satisfing.” In light of the following: Nonindicted 3’s age, attitude and statement (which could not have caused any problems due to mental disorder or mental disorder in the content of the statement and statement in the court of the lower court; and (i) Nonindicted 3’s statement in the court of the lower court; and (ii) Nonindicted 3’s statement in the court of the lower court to the prosecution on December 16, 2008; and (iii) the Defendants did not participate in the above interrogation at the court of the first instance.

(5) Other evidence

In relation to the crime of this case in the court below, Non-Indicted 4 stated in the court below as follows: "I are the same as that of the Defendants", "Momann's memory", and "I are the same as that of the assault case that the death of the person who died at the time of the person who died in the orchard was a flick Station, and I make a statement as if he made a wrong statement in the prosecutor's office, so it is difficult to consider Non-Indicted 4's statement as evidence of guilt against the Defendants.

The witness Nonindicted 7’s statement was that he led to the confession from Defendant 1 to commit a crime, but Nonindicted 7 made a statement even though Defendant 1 denied the crime, so it is insufficient to use it as evidence of guilt.

On-site inspection CDs include various conflicting points such as the Defendants and Nonindicted 5’s protocol of interrogation of the prosecution against the Defendants, and Nonindicted 5’s statement that Nonindicted 5 drafted on the bottom of the Sejong World Cup (Evidence No. 333 pages) is confused with Nonindicted 5’s assault against Nonindicted 6 and assault against the victim as seen earlier. In light of the fact that Nonindicted 5 confused with Nonindicted 6’s assault and assault against the victim, this also is insufficient to be considered as evidence of guilt against the Defendants.

(6) Determination of whether a crime was committed

The evidence that there is a criminal fact in the criminal procedure shall be presented by the prosecutor, and even if the defense of the defendant is unreasonable and false, it cannot be disadvantageous for the defendant, and the criminal facts must be proved by the judge to have a high probability sufficient enough to hold reasonable doubt (see Supreme Court Decision 91Do1385 delivered on August 13, 1991). If there is no evidence to establish a high degree of conviction, even if there is suspicion of guilt against the defendant, it shall be judged as the benefit of the defendant (see Supreme Court Decision 2005Do8675 delivered on March 9, 206).

In this case, there is no evidence to prove that the Defendants suffered bodily injury. As seen earlier, the confession statement of the suspect suspect prepared by the public prosecutor on the Defendants in the interrogation of the suspect suspect against the Defendants is not open to the court, and the contents of the statement conflict with each other, and thus, the authenticity and credibility of the contents of the statement are doubtful. Other evidence is insufficient to believe it, or to prove the facts charged against the victims non-indicted 1, and there is no evidence to prove it otherwise.

Therefore, the judgment of the court below which found the Defendants guilty of the charge of injury resulting from death is erroneous by misunderstanding facts and affecting the conclusion of the judgment.

3. Conclusion

Therefore, the judgment of the court below on this part cannot be reversed on the ground that the defendants' appeal against the injury to the defendants in the judgment of the court below is justified. However, the crime of injury to the defendants 1 and 2 is one of the substantive concurrent crimes under the former part of Article 37 of the Criminal Act, which the court below found guilty against the above defendants, and as a result, one of the above defendants cannot be exempted from reversal in its entirety. Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided after pleading as follows.

The summary of the facts constituting the crime and the evidence acknowledged by this court is to delete paragraph (2) of the facts constituting the crime of the judgment below and to accept it in accordance with Article 369 of the Criminal Procedure Act, except for the change of the summary of the evidence [the co-injury to Nonindicted 6 and the injury to Nonindicted 1] as follows.

[Joint Injury to Non-Indicted 6]

1. Defendant 1’s oral statement in the original trial

1. The court below's oral statement of the witness non-indicted 6

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

- Defendant 1: Article 2(2) and (1)3 of the Punishment of Violences, etc. Act, Article 257(1) of the Criminal Act (the point of joint injury, the choice of imprisonment), Article 2(2) and (1)3 of the Punishment of Violences, etc. Act, Article 350(1) of the Criminal Act (the point of joint conflict, the choice of imprisonment), Article 331(2) and (1) of the Criminal Act (the point of special larceny)

- Defendant 2: Articles 331(2) and (1) (the point of special larceny), 342, 331(2) and (1) (the point of attempted special larceny) of the Criminal Act;

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [as to Defendant 1, the punishment against Defendant 1 shall be imposed concurrently with the punishment prescribed for a violation of the Punishment of Violences, etc. Act with the largest punishment (Provided, That the lowest sentence of punishment shall be determined by the punishment for a special larceny). As to Defendant 2, the punishment against Defendant 2 shall be imposed by the penalty prescribed for a special larceny on January 9, 2008 with the largest punishment for a crime)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Code

1. Suspension of execution;

Article 62(1) of the Criminal Code (The following grounds for sentencing each consideration shall be given to the defendants in favor of each of the defendants)

Defendant 1 suffered an injury to the victim non-indicted 6, took property from the victim non-indicted 11, stolen the property from the victim non-indicted 12, etc., and Defendant 2 stolen or attempted to commit the property from the victim non-indicted 12, etc. through eight times, and the crime quality and criminal situation of the above Defendants were not somewhat weak. Meanwhile, the above Defendants committed the crime due to the necessity of money during the old-age life; Defendant 1’s injury to the victim non-indicted 6 was not excessive; the above Defendants are still ageed, there was no history of punishment, and there was no history of punishment; the above Defendants were divided; the Defendants were detained for one year by the crime of this case; the above Defendants’ character and behavior, the means and result of the crime, and the circumstances after the crime, etc.

Of the facts charged in the instant case, since there is no evidence to acknowledge it as seen earlier, the facts charged against the Defendants on the death or injury resulting in bodily injury constitutes a case where there is no evidence to prove the crime, thereby not guilty under the latter part of Article 3

Judges Jo Hee-de (Presiding Judge)