[1] The meaning of the principle of free evaluation of evidence / Method of evaluating the probative value of indirect evidence / The limitation of the principle of free evaluation of evidence in a criminal trial and the meaning of "reasonable suspicion" in the formation of conviction

[2] Whether the credibility of a confession made by a defendant at the prosecution is doubtful solely on the grounds that the confession by a defendant is different from the court statement or that it is excessively unfavorable to the defendant (negative) / Standard for determining the credibility of a confession

[1] Articles 307 and 308 of the Criminal Procedure Act / [2] Articles 308 and 309 of the Criminal Procedure Act

[1] Supreme Court Decision 2004Do2221 Decided June 25, 2004 (Gong2004Ha, 1290), Supreme Court Decision 2017Do2567 Decided June 29, 2017, Supreme Court Decision 2016Do6757 Decided January 25, 2018, Supreme Court Decision 2018Do7709 Decided October 25, 2018 (Gong2018Ha, 2294) / [2] Supreme Court Decision 2000Do5442 Decided June 24, 2003 (Gong203Ha, 1646) Supreme Court Decision 209Do6755 Decided April 9, 2009

Defendant

Prosecutor

Gwangju District Court Decision 2017No2860 Decided January 24, 2018

The judgment below is reversed, and the case is remanded to the Gwangju District Court.

The grounds of appeal are examined.

1. Summary of the facts charged in this case

On November 28, 2013, the Defendant was sentenced to one year and eight months of imprisonment with prison labor for special larceny, etc. at the District Court of the Republic of Korea on November 28, 2013, and is not a narcotics handler on November 14, 2014.

(a) Sale and purchase of merphographs (hereinafter referred to as "copon");

1) On August 20, 2016 or around 21:00 of the same month, the Defendant traded phiphonephones in a way that ○○○-dong, located in the △△-dong of Gwangju, by drying up Nonindicted 1 with 0.7g philopon from Nonindicted 1 and dry up KRW 300,000,000.

2) On the following day of the above Paragraph 1, the Defendant purchased and sold philophones in a manner that dryphones 0.7g from Nonindicted 1 and 200,000 won from Nonindicted 1 in the above eel 6 eel 6 lusium.

3) On August 31, 2016, the Defendant: (a) purchased and sold phiphones in a way that Nonindicted Party 1 purchased and sold 0.7 ghon in front of the said Magdong; and (b) KRW 300,000,000 from Nonindicted Party 1.

(b) Acceptance of philophones;

1) On August 26, 2016, the Defendant received from Nonindicted Party 1 the philophone dypon volume (one-time medication) at the 6 mix room of the above Magromomomoto, the Defendant received the Magromoto (one-time medication).

2) 피고인은 2016. 8. 31. 점심경 광주 ◇구 ☆☆동에 있는 ▽▽역 인근 노상에 주차된 공소외 1의 ◎◎◎◎ 차량(차량번호 생략) 안에서 공소외 1로부터 필로폰 0.14g을 건네받아 수수하였다.

2. Summary of the judgment of the court below

원심은, ① 피고인은 공소사실의 각 일시를 포함하여 2016. 8. 13.부터 2016. 8. 22.까지는 광주 ◁◁구 ▷▷동에 있는 ♤♤♤병원에, 2016. 8. 26.부터 2016. 9. 8.까지는 광주 ○구 ♡♡동에 있는 ●●병원에 각 입원하여 치료받았고 위 입원기간 동안 외출이나 외박을 하였다고 볼 자료가 없을 뿐만 아니라, 오히려 원심의 ●●병원에 대한 사실조회회신 결과에 의하면 피고인은 2016. 8. 26.부터 2016. 9. 8.까지 외출·외박을 하지 않았던 것으로 보이는 점, ② 피고인이 병원 몰래 외출·외박을 하였다고 가정하더라도 피고인에게 필로폰을 매도하거나 건네주었다는 공소외 1과 피고인이 같이 입원하고 있었다면 굳이 공소사실과 같이 제3의 장소까지 가서 필로폰을 거래할 이유가 없다고 보이는 점, ③ 피고인이 사용하던 핸드폰(전화번호 1 생략)에 대한 통화내역상의 발신 사이트(장소)와 피고인이 입원하였던 병원의 위치가 부합하지 아니하여 피고인이 병원에 입원한 기간 동안 실제 위 핸드폰을 사용한 것인지도 의심스러운 점, ④ 공소외 1은 수사기관에서 공소사실 중 2016. 8. 26.경 필로폰 수수 행위에 관하여 당초에는 ‘필로폰 0.7g을 30만 원에 판매하였다’고 진술하다가 그 뒤에는 ‘피고인의 외상 매수 제의를 거절하고 그 대신 1회 투약분을 주었다’는 취지로 진술을 번복하였는데 그 번복 경위나 번복된 진술 내용이 납득하기 어려우며, 마약 전과 없는 피고인이 공소외 1로부터 상당한 양의 필로폰을 단기간에 집중적으로 매수 또는 수수하였다는 것도 납득하기 어려운 점 등에 비추어 보면, 공소외 1의 진술은 믿기 어렵고, 그 밖에 검사가 제출한 증거들만으로는 공소사실을 인정하기에 부족하다고 보아, 공소사실을 유죄로 인정한 제1심판결을 파기하고, 피고인에 대하여 무죄를 선고하였다.

3. Judgment of the Supreme Court

A. 1) Article 308 of the Criminal Procedure Act, which provides for the principle of free evaluation of evidence, provides that the probative value of evidence shall be based on the judge’s free evaluation of truth. As such, a fact-finding judge, who has the exclusive right to the determination of evidence, shall take into account the perception obtained in the trial proceedings and the evidence examined when conducting fact-finding. It is not necessarily required to be formed by direct evidence, but may be based on indirect evidence, and indirect evidence shall not be individually and separately assessed, and it shall undergo an equitable and contradictory argument in all respects. The probative value of evidence shall be left to the judge’s free evaluation, but it should be consistent with logical and empirical rules, and the degree of the formation of a conviction to find guilty in a criminal trial is not likely to have a reasonable doubt. It does not require that this is beyond 10,000, and it does not constitute a reasonable doubt or 20,000, and thus, it shall not be deemed that there is a reasonable doubt or 70,000 square meters beyond the bounds of the principle of free evaluation of evidence.

2) The credibility of a confession made by the prosecutor cannot be deemed to be doubtful solely on the grounds that the confession made by the defendant is different from the legal statement or that it is excessively unfavorable to the defendant. In determining the credibility of a confession, the credibility of the confession shall be determined by taking into account the following: (a) whether the contents of the confession statement itself have objectively rationality; (b) the motive or reason behind the confession; (c) what is the motive or reason for the confession; and (d) the circumstances leading up to the confessions among circumstantial evidence other than the confessions that do not conflict with or conflict with the confessions; and (e) whether the confessions by the defendant have any circumstance to have reasonable doubts about the motive or process of the confessions (see, e.g., Supreme Court Decisions 200Do5442, Jun. 24, 2003; 2009Do675, Apr. 9, 2009).

B. Examining the foregoing legal doctrine and the evidence duly admitted, the lower court’s aforementioned determination is difficult to accept. The reasons are as follows.

1) 피고인은 제1심에서 공소사실을 전부 부인하였으나 유죄판결을 받았다. 피고인은 항소한 이후 원심에서야 비로소 공소사실의 각 일시에 광주 ◁◁구 ▷▷동에 있는 ♤♤♤병원 및 광주 ○구 ♡♡동에 있는 ●●병원(이하 위 각 병원을 통칭하여 ‘이 사건 각 병원’이라 한다)에 입원하여 위 각 병원 내에 있었다고 주장하면서 입·퇴원확인서, 진료비납입확인서, 의무기록카드 등(증 제1호증 내지 제3호증의 2)을 제출하였다. 원심은 피고인이 내세우는 위 증거와 원심의 ●●병원에 대한 사실조회회신 결과 등을 근거로 피고인의 위 주장을 받아들였다.

However, in light of the following circumstances, it is highly probable that the Defendant was not each hospital of this case at each time of the facts charged, but at each location of the facts charged. The admissibility of Nonindicted 1’s prosecutorial and court testimony, which conforms to the confessions of the Defendant and the facts charged, is difficult to be rejected solely with the aforementioned evidential materials cited by

A) During the prosecutor’s investigation, Nonindicted Party 1 stated to the effect that “The mobile phone number of Nonindicted Party 1 himself/herself used at the time of each of the instant crimes is (number 2 omitted). Other than that, Nonindicted Party 1 also used (number 3 omitted), and (number 4 omitted).” The Defendant sent a mobile phone number of the Defendant’s mobile phone in contact mainly (number 1 omitted). Although the Defendant did not memory the accurate phone number, the Defendant also stated that he/she used the 1 and 2 telephone numbers more.” The Defendant also stated that “The mobile phone number used at the time of the instant case around August 2016 by the Defendant was (number 1 omitted), (number 2), (number 5 omitted) (name of the Defendant, and number 5 omitted) of the mobile phone number used by Nonindicted Party 1 on each of the instant charges, and that Nonindicted Party 1 stated that he/she used the mobile phone number on one occasion between the phone number used by him/her and the number indicated by the Defendant.

In addition, at the time of the prosecutorial investigation, the Defendant stated that “I do not have any particular property, and will pay approximately 700,000 won in one month,” and, at the time of the prosecutorial investigation twice, the Defendant asked questions about who was the other party’s mobile phone (number 1 omitted) which is confirmed to have been exchanged several times with the mobile phone (number 1 omitted) used by the Defendant at each time of the facts charged in this case, and designed 10 insurance policies that I want to be purchased. Nonindicted 3 is an insurance solicitor and the inner phone number of Nonindicted 3. Since there is good inside, Nonindicted 3 calls Nonindicted 3 every day. At the same time, the Defendant stated that “I do not handle phiphonephones illegally.” At the same time, the Defendant appears to have been in a specific situation at the time of the instant insurance.”

한편 피고인은 2017. 4. 21. 체포된 직후 자신의 휴대폰 전화번호가 (전화번호 7 생략)이라고 밝혔다. 이에 관하여 피고인은 같은 날 실시된 검찰 1회 조사 시 ‘내가 현재 사용 중인 휴대폰 전화번호는 형 공소외 2 명의의 (전화번호 7 생략)이다. 통신사는 공소외 4 주식회사의 알뜰폰 ▲▲ 모바일이다. 이 전화는 내가 과거에 쓰던 번호 (전화번호 1 생략)을 번호이동한 것이다’, ‘전화번호를 변경한 이유는 벌금을 납부하지 못하여 독촉 전화가 왔고 수사관이 찾아올까 봐 그런 것이다. 위 (전화번호 7 생략)을 사용하기 시작한 시기는 약 2~3개월 전부터이다’라고 진술하였다. 피고인의 위 진술 이후 검찰이 2017. 4. 27. 공소외 4 주식회사로부터 받은 통화내역 회신자료에 의하면, 실제로 피고인이 위와 같이 진술한 날로부터 약 2개월 전인 2017. 2. 23.경 휴대폰 (전화번호 1 생략)이 (전화번호 7 생략)으로 변경된 것으로 보인다. 그뿐만 아니라 통화내역에는 피고인의 휴대폰 전화번호가 위와 같이 변경되기를 전후하여 발신 상대방 전화번호에 (전화번호 6 생략)(피고인이 지인이라고 밝힌 공소외 3의 전화번호)이 공통적으로 나타난다.

Ultimately, there is much room to regard a person who uses a mobile phone (number 1 omitted) around the date and time of the instant facts charged as the Defendant.

나) 그런데 피고인이 사용한 것으로 보이는 휴대폰 (전화번호 1 생략)에 대한 통화내역상의 발신 사이트(장소)를 살펴보면, ♤♤♤병원(광주 ◁◁구 ▷▷동)에 입원하였다고 주장한 기간(2016. 8. 13.~2016. 8. 22.)에 전화 발신횟수가 상당히 많음에도 불구하고 그 발신 사이트가 거의 대부분 광주 ○구 △△동 등지일 뿐이고 ‘광주 ◁◁구 ▷▷동’은 나타나지 않는다. 광주 ○구 △△동은 공소사실의 □□□모텔이 있는 곳이다. ●●병원(광주 ○구 ♡♡동)에 입원하였다고 주장한 기간(2016. 8. 26.~2016. 9. 8.)의 경우도 마찬가지여서 그 발신 사이트 가운데 ‘광주 ○구 ♡♡동’이 나타나지 않는다.

Therefore, the defendant has a high possibility of not having been in Blue Hospital or Blue Hospital at the time of transmitting cell phone (number 1 omitted) during each of the above periods.

C) In the court of the court below, Nonindicted Party 1 stated in the court of the court below that “it was true that Nonindicted Party 1 himself was hospitalized in the Doe Hospital and Blue Hospital due to a traffic accident while the Defendant was driving his own vehicle prior to each of the crimes of this case, but at the time of each of the crimes of this case, Nonindicted Party 1 himself was hospitalized in the Doe Hospital and Blue Hospital. However, at the time of outing and staying out, Nonindicted Party 1 got out of and staying out of the hospital during the period of hospitalization.” “The time when the horses were hospitalized in the hospital actually, they may be able to be locked and well able to be locked by being hospitalized in the hospital,” and “the Defendant was also staying out and staying out of the hospital.” In fact, there are many places where it cannot be seen that Nonindicted Party 1’s cell phone numbers appear in the telephone call details of the mobile phone numbers around each of the charges.

D) The lower court, upon the request of the prosecutor, sent a fact-finding to the Don Hospital and the Bale Hospital in order to verify whether the Defendant was out of and out of the hospital during the period of hospitalization. In the Don Hospital, the response was not made in the Don Hospital, and in the Blue Hospital, “In our hospital, the patient prepared out of and out of the hospital, and allowed it with the permission of the head of the hospital.” However, on the basis of the Defendant’s health record book, the above patient was confirmed based on the Defendant’s nursing record, and the patient was not accompanied by going out of and out of the hospital. Therefore, it is difficult to believe the above reply as it was, and in light of the above circumstances, it cannot be ruled out that the Defendant was out of and out of the hospital without permission without permission, without permission from the person concerned.

2) In the prosecution, the first instance court, and the lower court’s court, Nonindicted 1 consistently maintained statements that correspond to the facts charged in the instant case, and the details of such statements are considerably detailed.

However, in the facts charged, Non-Indicted 1 stated at the prosecution that “the crime of giving and receiving philopon around August 26, 2016” was “at the first time, Non-Indicted 1 sold KRW 0.7g of philopon contained in the one-time popon telephone method from the prosecutors’ office.” However, the Defendant’s assertion that it was only one-time medication as at the time of the first investigation at the prosecutor’s office, and that it was only one-time medication as at the time of the second investigation, Non-Indicted 1 again examined Non-Indicted 1 in order to confirm it, and Non-Indicted 1 took advantage of the assertion of the Defendant. There was no room to reverse the Defendant’s oral statement to the effect that the Defendant refused transactions with lapson on credit, and that he did not have any error in the number of times when he made a statement to the effect that he made a statement to the effect that he did not have any influence on his part at the time when he made the previous prosecutor’s office’s reply.”

3) The lower court also acknowledges that “If Nonparty 1 was hospitalized in the same hospital as the Defendant, there is no reason to conduct the transaction of philophones at each place of the facts charged,” and that “the Defendant, who did not have the criminal record of narcotics, purchased or received a considerable amount of philophones from Nonindicted 1 in a short time, is difficult to understand that he purchased or received them in a short period.”

However, as seen earlier, in light of the following: (a) Nonindicted 1 and the Defendant had a high possibility of closing out and staying outside the hospital during the hospitalization period; (b) there is room for Nonindicted 1 to have tried to select any place other than the hospital as a trading place in light of the gravity of the transaction of narcotics; and (c) Nonindicted 1’s statement, such as the frequency and volume of the transaction of narcotics with the Defendant, the time and place of the transaction, and the Defendant’s criminal record of narcotics, etc., which can be known in the Nonindicted 1’s statement, are merely suspicions based on conceptual or abstract possibility, and thus, it is difficult to dismiss the credibility of Nonindicted 1’s statement.

4) The Defendant led to the confession of all the facts charged in the instant case at the prosecution. However, in light of all the circumstances, such as the Defendant’s educational background, career, occupation, details of the prosecutor’s statement, and the form of the suspect interrogation protocol, the Defendant’s confession by the prosecution is deemed to have voluntariness. The Defendant’s confession by the prosecution is deemed to be voluntary in view of the following: (a) the Defendant’s reversal of the confession at the first instance trial and denied the entirety of the crimes; and (b) the background leading up to the reversal of the indictment.

In addition, the Defendant, at the prosecution, called “at the time of the instant case, he was living at △△△dong located in △△△-dong, and himself was even living at △△△-dong,” and Nonindicted Party 1 called Nonindicted Party 1’s telephone to the Defendant and called “Whophone price.” The Defendant, “at the time of the instant case, he purchased about 10 instances of opphone 0.7g of opphone,” “at the time of the instant case, he administered opphone at △△-dong, at least 30 times”, “the opphone was administered at △△-dong at the time of the instant case,” and on August 31, 2016, the opphone 0.14g of opphone, which was received without compensation from Nonindicted Party 1, correspond to Nonindicted Party 1, which was written at the time of the instant crime, including the Defendant’s place where the instant act was committed, the reason why Nonindicted Party 1 received 4g of opphone, without compensation.

게다가 피고인은 2017. 4. 24. 검찰 2회 조사 시, ‘2017. 4. 1. 15시경 안양시에 있는 어떤 동사무소로 가서 내가 운전한 ■■■ 차량 안에서 다른 마약사범 공소외 5로부터 필로폰 두 작대기(1회용 주사기에 가득 찬 상태)를 80만 원에 구입하였다. 공소외 5와는 내 (전화번호 7 생략)으로 연락했다’라고 진술하는 등 공소외 1이 마약범죄로 구속된 이후 다른 사람으로부터 필로폰을 매수, 거래한 정황까지 구체적으로 진술하였다. 피고인의 위 진술 이후 검찰이 2017. 4. 27. 공소외 4 주식회사로부터 받은 통화내역 회신자료에 의하면, 피고인이 사용한 것으로 보이는 휴대폰 (전화번호 7 생략)[기존 (전화번호 1 생략)에서 변경된 것]의 발신 시각 2017. 4. 1. 14:46경에 해당하는 발신 사이트는 실제로 ‘안양시 ◆◆구 ★★동’으로 나타난다.

Unlike others, there is no reason to suspect the credibility of confession made by the defendant in the prosecution.

C. Nevertheless, the lower court did not consider the perception obtained in the trial proceedings and the evidence examined, without comprehensively assessing them from all respects, and, on the grounds indicated in its reasoning, rejected the probative value of Nonindicted 1’s statement and determined that the remainder of the evidence alone was insufficient to prove the facts charged. In so determining, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds

4. Conclusion

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

Justices Lee Ki-taik (Presiding Justice)