[1] Requirements for recognizing the admissibility of a victim's statement recorded in a video recording made in accordance with Article 21-3 (3) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, and the scope of "statements" whose admissibility is recognized

[2] In a case where a prosecution was instituted against the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, the case reversing the judgment below which found the defendant guilty on the ground of inadmissible evidence

[1] The “victim’s statement” recorded in a video recording made under Article 21-3(3) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof is admissible as evidence when it is acknowledged to be genuine by a statement made by a victim or a person in a fiduciary relationship who was present in the investigative process at a preparatory hearing or during a public trial pursuant to Article 21-3(4) of the same Act. Moreover, the admissibility of evidence pursuant to Article 21-3(4) of the same Act is limited to “a statement made by a victim in a video recording made under Article 21-3(3) of the same Act, and it does not constitute “a statement made by a police officer with respect to a victim or a person in a fiduciary relationship who was present in the investigative process

[2] In a case where a prosecution was instituted against the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, the case reversing the judgment below convicting the victim on the ground that the statement of the victim recorded in the video recording made under Article 21-3 (3) of the same Act was proved through the statement of the victim made by the mother of the victim who was present in the investigation process to the effect that the statement of the victim corresponds to the contents of the police statement made by the police officer, but the victim's statement was not used as evidence, and it did not meet each requirement of Articles 316 (2) and 312 (4) of the Criminal Procedure Act, and there was sufficient proof of criminal facts only due to the victim's mother's statement on the trial date, the police statement made against the victim

[1] Article 21-3 (3) and (4) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof / [2] Article 21-3 (3) and (4) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, Articles 307, 308, 312 (4) and 316 (2) of the Criminal Procedure Act

[1] Supreme Court Decision 2009Do11575 decided Dec. 24, 2009 (Gong2010Sang, 301)

Defendant

Defendant

Attorney Hong Hong-soo

Seoul High Court Decision 2009No2138 decided October 22, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

When a statement made by a person other than a defendant at a preparatory hearing or during a public trial contains contents of a statement made by a person other than the defendant, it may be admitted as evidence, only when the person making the original statement is unable to make a statement due to death, illness, foreign residence, unknown whereabouts, or any other similar cause, and it is proved that the statement was made in a particularly reliable state (Article 316(2) of the Criminal Procedure Act). A protocol in which a prosecutor or senior judicial police officer made a statement by a person other than the defendant in compliance with due process and method, and the protocol was prepared in accordance with the same manner as the statement made by a prosecutor or judicial police officer, and it is proved by a statement or a video product at a preparatory hearing or during public trial of the person making the original statement or by any other objective method, and it is possible to examine the original person concerning the contents thereof at a preparatory hearing or during public trial, it may be admitted as evidence: Provided, That it is limited to cases where it

Meanwhile, a victim’s statement in a video recording made under Article 21-3(3) of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (hereinafter “Sexual Crimes Punishment Act”) may be admitted as evidence when it is acknowledged that the victim’s statement is authentic by a statement made by the victim or a person in a confidential relationship who was present in the investigative process at a preparatory hearing or during a public trial pursuant to paragraph (4) of the same Article.

The summary of the facts charged of the instant case is that the Defendant was raped on April 11, 2009 (hereinafter “the instant crime No. 1”) on the part of the victim (the victim (the victim, 7 years of age) who is a private village living together) and was injured by rape on April 22 of the same year (hereinafter “the instant crime No. 2”), and the Defendant led to the confession of the instant crime No. 2 at the first instance court and denied the instant crime No. 1.

However, the first instance court found the victim's statement recorded in the video recording made pursuant to Article 21-3 (3) of the Sexual Crimes Punishment Act through the victim's mother's statement, which was present in the investigation process, to coincide with the contents of the victim's written statement by the police officer's statement. However, without using the victim's statement as evidence, it found the victim's partial statement, the victim's mother's statement on the date of trial, and the victim's police statement, etc., sufficient proof of each of the above crimes was found guilty. The lower court affirmed the first instance court's judgment and dismissed the defendant's appeal.

However, according to the records, direct evidence of the crime No. 1 of this case is the victim's statement at the police station. The victim's statement at the date of trial is the victim's statement, and there is no sufficient evidence to acknowledge the crime No. 1 of this case. In light of the above legal principles, the police's statement of the victim cannot be used as evidence because it does not meet the requirements of Article 312 (4) of the Criminal Procedure Act, and the mother's statement at the date of trial does not meet the requirements of Article 316 (2) of the Criminal Procedure Act, and it cannot be used as evidence. Furthermore, the admissibility of evidence under Article 21-3 (4) of the Punishment of Sexual Crimes Act is only limited to "the victim's statement recorded in the video recording made under Article 21-3 (3) of the Act," and the statement at the date of trial of the person in trust who was present at the police or investigation process with the victim's statement at the victim's date of trial. Thus, the court below's ground of appeal pointing this out is justified.

Therefore, the part of the judgment of the court below regarding the crime No. 1 of this case shall be reversed, and since one sentence is imposed on concurrent crimes under the former part of Article 37 of the Criminal Act with the crime No. 2 of this case, the judgment of the court below shall be reversed in its entirety and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent

Justices Kim Young-ran (Presiding Justice)