In cases where a victim has made a supplementary statement of damage caused by a video taken pursuant to Article 21-3 of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof, the requirements to recognize admissibility of evidence in a case where the victim has made a supplemental statement of damage caused by

A statement made by a victim of sexual assault recorded in a video recording made under Article 21-3 of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof may be admitted as evidence when it is acknowledged to be genuine by the statement made by a person in a fiduciary relationship who was present in the investigative process. In addition, in a case where the victim’s oral recording is made together with the statement of damage caused by the video recording, this is nothing more than the part of the victim’s statement recorded in the video recording, and thus, if it is acknowledged to be genuine by the statement made by a person in a fiduciary relationship who was present in the investigative process, it may be admitted as evidence

Article 21-3 (1), (3), and (4) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof

Defendant

Defendant

Attorney Park Hyun-gil et al.

Busan High Court Decision 2009No360 decided October 21, 2009

The appeal is dismissed.

The grounds of appeal are examined.

1. In Article 21-3 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, a public prosecutor or a judicial police officer shall pay attention not to impair the victim’s character or reputation or infringe on the victim’s private secrets in the course of investigation, taking into account his/her age, psychological condition or existence of post-existence disorder, etc. (paragraph (1)). In cases where the victim under paragraph (1) is under the age of 16 or lacks the ability to discern things or make decisions due to physical or mental disorder, the contents of the victim’s statement and the process of the investigation shall be recorded and kept using a video recording device such as a video recording device: Provided, That the victim’s statement recorded in a video recording made pursuant to paragraph (3) shall not be taken when the victim or his/her legal representative expresses his/her intention not to want such recording (paragraph (3)). Thus, the victim’s statement made in a preparatory hearing or during the investigation process can be admitted as evidence if it is admitted to be genuine by the victim’s statement made in the course of investigation (paragraph (4).

According to the records, the first instance court acknowledged the authenticity of the formation of the victim's statement recorded in the video recording by the statement of Parkboo-○, which was present in the process of investigation of the victim during the fourth trial date, and investigated as evidence. Thus, the ground of appeal that the victim's statement without admissibility of evidence was adopted as evidence cannot be accepted.

In addition, the images taken as above are taken by the victim’s statement of damage caused by the victim’s body, and as a supplementary document, this is nothing more than the part of the victim’s statement recorded in the video recording. Therefore, when it is acknowledged that the authenticity of establishment is made by the statement of a person in a fiduciary relationship who was present in the investigative process in accordance with the above

The court of first instance, as cited by the court below, adopted “the statement in the victim’s appearance” as separate evidence, is erroneous. However, it is sufficient to recognize the facts charged of this case even based on the evidence publicly stated by the court of first instance, including the victim’s statement in the video work, and thus, the above mistake does not affect the conclusion of the judgment.

2. The court below maintains the conclusion of the judgment of the court of first instance which found guilty of the facts charged in this case as stated in its reasoning. In light of the records, the judgment of the court below is just and acceptable in its conclusion as it is based on the reasonable free evaluation of judges of the court of fact-finding, and there is no violation of the rules of evidence as alleged in the

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)