(영문) 대법원 2015.2.26. 선고 2014도11771 판결

1. The summary of the facts charged in the instant case is the physical clinic of C Hospital. From around 13:00 on December 10, 201 to around 13:30 on the same day, the Defendant forced the victim to commit an indecent act by force, such as forcing the victim (the victim (the 30-year-old age-old age-old), who complained of the pain pain in the physical clinic of C hospital from around 13:0 on December 10, 201.

Although the Defendant consistently denied the facts charged from the investigative agency to the court of the lower court, the lower court upheld the first instance judgment that found the Defendant guilty of the facts charged by taking the victim’s statement as evidence.

2. The criminal defendant is presumed innocent until a judgment of conviction becomes final and conclusive (Article 27(4) of the Constitution of the Republic of Korea, Article 275-2 of the Criminal Procedure Act), and Article 275-2 of the Criminal Procedure Act does not specifically stipulate the principle that "the interest of the criminal defendant is the interest of the criminal defendant." However, the principle that controls the criminal trial as the basic principle of the rule of law inherent in the above Constitution and the Criminal Procedure Act. Therefore, the conviction in the criminal trial must be based on the evidence with probative value sufficient to cause a judge to have a reasonable doubt that the facts charged are true, and if there is no evidence to form such a conviction, even if there is no evidence to establish such a degree of conviction, the interest of the criminal defendant shall be judged as the interest of the criminal defendant (see Supreme Court Decision 20041404 delivered on December 11, 2004).

3. Examining the reasoning and records of the lower judgment in accordance with such legal doctrine, the lower court’s determination is difficult to accept for the following reasons.

(1) Even based on the facts charged that the lower court found the Defendant guilty, the act of indecent act by compulsion committed by the Defendant is all the fact that the Defendant, a physical therapy hospital, was “the Defendant, who was a physical therapy hospital, was involved in several breasts of the victim who was enjoying a flood treatment against the victim for about 30 minutes at the physical therapy clinic of the hospital.”

In addition, the victim's statement was made in a concentrated on the chest of the victim, including clothes, for most of the treatment hours while the defendant was receiving treatment. It was clearly satisfy that the victim's body part was not disturbed for the victim's return. However, the victim's statement was made only to the defendant with the purport that "I do not refuse to give treatment by resisting the defendant or causing such act," and that the defendant's treatment was completed only through only indecent acts committed by the defendant." This is not only the victim's statement but also the victim's statement that "I would like to receive attention" but also it is difficult for the court below to acknowledge that the victim's statement was made as a witness at the time of the treatment without wanting to do so, but also it is also difficult for the victim to make the victim's statement in the name of the victim as well as the victim's statement that there was no other specific circumstance that the victim's statement was made within the victim's body, such as "an indecent act" or a witness, and it is also difficult for the court below to find that the victim's statement.

(2) According to the reasoning of the lower judgment, evidence, and other records, at the same time, the victim was receiving veterinary treatment from the Defendant at a physical treatment room, where many people frequent and frequent access, and the victim was clearly aware that there was no objective obstacle to resisting or refusing the treatment, i.e., the Defendant’s treatment. Moreover, the charge itself does not mean that the Defendant committed assault or intimidation to commit an indecent act against the victim. Therefore, it seems that the victim could have retired from or escaped from the Defendant’s indecent act by extremely easy and simple means, such as making the victim’s mind clear, refusing to give treatment, and breaking the place. Nevertheless, even though the victim was aware that there was an indecent act by the Defendant within approximately 30 minutes of the treatment period, and even if he did not appear to have been committed, he did not appear to have any doubt as to whether he did not appear to have committed an indecent act, but did not appear to have any other indecent act after the victim’s refusal to do so and did not appear to have any specific opinion.

Furthermore, the lower court also acknowledged the Defendant’s compensation, as well as L and K, and even to the patient who received treatment at the time, testified with the purport that “at the time of the instant case, the Defendant appeared to provide a normal veterinary treatment to the victim at the time of the instant case, and that the Defendant did not perform any act identical to the facts charged, and was not in a fluorable situation.” Compared with other materials included in the record, there is no objective circumstance to suspect the falsity in addition to the fact that the Defendant’s statement by multiple unanimous votes is contrary to the victim’s statement. Moreover, even if the authenticity of the witness’s content itself is inconsistent with each of the above statements, it would be reasonable that, according to each of the above statements, the Defendant and the victim’s employees, as well as the victim, were forced to have been

(3) As seen earlier, the presumption of innocence cannot be determined with the benefit of the defendant when the defendant is doubtful as a constitutional major principle. In full view of the fact that the defendant consistently denies the facts charged, the fact that it is difficult to find out that the contents of the statement do not conform to the obvious contradictions or objective facts, and the statement and circumstances of a third party supporting the defendant's statement, even though the victim's tendency is somewhat severe or unexpected, it is difficult to conclude that the victim's statement was made by reason of the fact that the contents of the victim's statement are not specific and contradictory, and that the victim's statement and objective circumstances against the victim's statement are natural, and that the defendant committed an indecent act by force, such as the facts charged, cannot be concluded.

4. Nevertheless, the lower court, without sufficiently considering all circumstances related to the credibility of the victim’s statement obtained in the trial proceedings, such as the reasonableness and validity of the statement itself, whether it conforms to other circumstances, and whether it conforms to the empirical rule, acknowledged that the Defendant committed the same offense as the facts charged, solely on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of the crime of indecent act by compulsion and the degree of proof of facts charged, or by exceeding the bounds of the principle of free evaluation of evidence contrary to logical and empirical rules, thereby adversely affecting the conclusion

5. The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.