(영문) 대법원 2015.12.10. 선고 2015도4048 판결

The part of the judgment of the court below against eviction is reversed, and that part of the case is remanded to the Changwon District Court Panel Division. The remaining appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. As to the part of the offense of violation of the Punishment of Violences, etc. Act, the conviction in a criminal trial shall be based on the evidence with probative value sufficient to have a judge prove that the facts charged are true beyond a reasonable doubt. If there is no such proof, even if there is no doubt as to the defendant’s guilt, the conviction cannot be rendered (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2006Do8675, Mar. 9, 2006).

For the reasons indicated in its holding, the lower court reversed the part of the first instance judgment convicting the Defendant of the charges prior to the amendment to this part of the indictment, and acquitted the Defendant on the ground that it is difficult to view that the part of the modified facts charged in the original instance, stating that “the Defendant carried the gas gun of this case without justifiable grounds,” was proven to the

The allegation in the grounds of appeal is the purport of disputing such fact-finding by the lower court and is merely an error of the lower court’s determination on the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. In addition, examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s reasoning is insufficient. However, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on “justifiable cause” under Article 7 of the Punishment of Violences,

2. As to the refusal to leave

(a) The offense of non-compliance with the eviction under Article 319 (2) of the Criminal Act shall be the protected legal interest of the de facto dwelling and shall be established if the person does not comply with the request for eviction from the dwelling place

In addition, the probative value of evidence is left to a judge’s free judgment, but such judgment must be consistent with logical and empirical rules. While the degree of formation of a conviction to be found guilty in a criminal trial is to the extent that there is no reasonable doubt, it does not require it to be excluded from all possible doubts, and rejection of evidence that is recognized as having probative value is beyond the bounds of the principle of free evaluation of evidence, and thus is not permissible (see, e.g., Supreme Court Decision 2004Do221, Jun. 25, 2004). (b) The first instance court found the Defendant, “F, despite having received a request for delivery from the victim D, the main office of the instant case, the head office of the instant main office of the instant case, to the extent that there is no reasonable doubt, and thus, it does not require it to be excluded from all possible doubts, and it is not permissible to exclude evidence that there is no reasonable ground to admit the probative value of evidence.

(2) On the other hand, the court below held that, on the grounds stated in its reasoning, it is difficult to believe that, among the facts charged above, it was hard to accept the judgment of the court below as follows: (a) if K was unaware of the defendant's visit and refusal to leave despite the fact that the size of the main points of this case was not relatively large, the defendant was about to leave the main points of this case, or at least D was demanded to leave the main points of this case with genuine will; (b) it was hard to say that D had a good appraisal on the grounds that there was a good condition, such as the defendant who had been on the main points of this case before filing a complaint, and that H was within the scope of influence of D as an employee of the main points of this case; and (b) it was hard to conclude that the defendant was not guilty of the facts charged as above on the grounds that there was no reasonable doubt as to the refusal to leave the main points of this case.

(1) Even if based on the reasoning of the lower judgment and the Defendant’s statement, it is evident that the Defendant found at around 18:40 the main points of this case to visit K and left about 10 minutes, and the police who received D’s report went to 18:52.

Therefore, whether the facts charged of non-compliance with the eviction should be determined by whether the defendant can be acknowledged without any reasonable doubt that D requested the eviction between about 10 minutes before entering the main point of this case and leaving the main point of this case.

(2) According to the reasoning of the lower judgment, the Defendant’s search time was revealed that the Defendant had opened gas powder, which is an object dangerous to the table of the main points of this case, around business hours. However, it is clear that the Defendant’s behavior would interfere with the main points of this case. As such, it seems natural to demand the Defendant to leave as a business owner, and it is reasonable to view that the Defendant’s statement to this effect is credibility.

Moreover, reporting the Defendant to the police is deemed to be due to the fact that the Defendant remains at the main point of the instant case, and that the Defendant was not in a net order, and such circumstance is objectively supported the Defendant’s statement that the Defendant was not in compliance with the eviction request.

In addition, according to the reasoning of the judgment of the court below, the defendant at the time of the instant case revealed the fact that he did not visit K at the main point of the instant case. However, it is reasonable to view that the defendant continued to leave the main point of the instant case until the arrival of the police, notwithstanding D's request or police report, is due to the fact that he did not have any intention to leave K at the main point of the instant case. This is also consistent with D's statement.

(3) Meanwhile, on the grounds of denying the credibility of D’s statement that the Defendant did not comply with the request to leave the Defendant, the lower court cited the reason that the Defendant previously filed a complaint between the Defendant and the Defendant as a matter of retirement allowance, etc., and that there was a good appraisal.

However, since it is natural in light of the empirical rule to view that D, which is in such a state, did not permit the stay of the defendant in the main points of this case he operated and required the defendant to leave, the above reason may be a circumstance to support D's statement that demanded the eviction, and therefore, it is unreasonable to deny the credibility of D's statement solely on the above reason.

(4) In addition, since D’s statement conforms to objective circumstances, it is reasonable to view that there is credibility of witness’s statement to this purport, and therefore, even if H is within the influence limit as an employee of the main office of this case, it is inappropriate to assess the credibility of H’s statement on the sole ground of such reason.

D. Nevertheless, the lower court determined otherwise on the grounds as seen earlier against the empirical rule that it was difficult to deny the credibility of each of the statements made by D and H, and that the facts charged were proven to the extent that there is no reasonable doubt as to the non-compliance with the demand for and refusal to leave. Therefore, the lower court erred by misapprehending the legal doctrine regarding the demand for and refusal to leave the crime of non-compliance with the principle of free evaluation of evidence contrary to the logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence recognized as having probative value beyond the bounds of the principle of free evaluation

3. Conclusion

Therefore, the part of the judgment of the court below against the withdrawal is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.