2012No2650 Public performance obscenity

○ ○

Residence, Mymna City and Do: Omission

6. Omission of the reference domicile:

Prosecutor

Lee Jong-won (Court of Second Instance) (Court of Second Instance)

Military affairs of Attorneys Jeon Soo-soo

Daejeon District Court Decision 2012 High Court Decision 25 decided November 16, 2012

July 17, 2013

The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal (misunderstanding of facts);

According to the fact that the family members of ○○ and ○○○ had observed several times, and on June 1, 201, witness the Defendant’s vehicle number and reported it to the police, the lower court acquitted the Defendant on the charge despite that the Defendant was found to have committed an obscene act as described in the facts charged in this case. The lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2. The facts charged in this case and the judgment of the court below

A. The facts charged in this case

On April 4, 2011, at around 07: 15: the Defendant, at the apartment parking lot located in Daejeon, performed the act of openly obscene act by setting up goods in the car in order to have the residents of the above apartment, ○○○○○, with the aim of serving at work. As the Defendant’s vehicle parked in the vehicle with a 1 ton of the freight vehicle in Chungcheongnam-gu, Chungcheongnam-gu, △△ho, and the above ○○, where ○○ was on the vehicle’s seat, she opened the vehicle with the driver’s seat immediately adjacent to the car.

B. The judgment of the court below

원심은 , ( 1 ) 이 사건은 채○○과 채○○의 가족이 피고인이 범행 당시 타고 온 포터 차량을 공소사실 기재 범행 일시 후에도 채○○의 주거지인 아파트 부근에서 수차 례 목격하여 오던 중 2011 . 6 . 1 . 18 : 40경 다시 포터 차량을 발견하고 차량번호를 확인 하여 경찰에 신고하면서 수사가 개시된 것으로 , ■■지구대 근무일지 , 사건사고 접수 및 처리현황의 각 기재에 의하면 채○○의 형부 최○○이 2011 . 6 . 1 . 18 : 42경 ■■ 지 구대에 포터 차량의 차량 번호를 충남□□나□□□□로 정확하게 특정하여 신고한 사 실이 확인되고 , 그 후 경찰이 피고인과 피고인의 포터 차량을 소환하여 채○○ 및 채 ○○의 가족과 대질 조사를 하는 과정에서 채○○ 및 채○○의 가족은 피고인이 범행 당시 목격한 사람과 외모가 흡사하고 그동안 목격해왔던 포터 차량과 피고인의 포터 차량의 외형이 동일하다고 진술함에 따라 수사기관은 피고인을 이 사건 공소사실의 범 인으로 판단하고 기소에 이르게 된 것이고 , 채○○ 및 채○○의 가족도 그들의 기억에 따라 진술하였던 것으로 보이나 , ( 2 ) 피고인은 2011 . 6 . 1 . 17 : 30경 피고인이 통상적으 로 사용하는 쏘렌토 승용차를 타고 논산시에 있는 ■■농협에 가서 농약을 구입하여 17 : 58분경 ■■농협을 출발하여 논산시에 있는 피고인의 부친이 운영하는 육묘장으로 돌아왔는데 , 피고인이 육묘장으로 돌아와서 이 사건 포터 차량으로 갈아탄 다음

In light of the fact that it is difficult to arrive at the site of 18:40 on the ground that ○○ Family's arrival at the site by ○○○○ Family's family's 18th degree of time, it cannot be said that there is no possibility that the vehicle number of the Defendant's family's Poter erroneously verified by mistake in the vehicle number of the Defendant's Poter, and that there is no possibility that the vehicle number of the Defendant's Poter is identical with the vehicle number of the Defendant's Poter, and that the Defendant and the Defendant's Poter already took place in the situation where the vehicle number of the Defendant and the Defendant's Poter were presented as a suspect and suspected vehicle, the statement about the identity of ○○ and ○○ family's family's Poter should be more likely than the statement about the suspect and suspected vehicle among various similar figures and vehicles, without any objective proof, it is doubtful that the Defendant's Ma○ and ○ family's Poter's statement alone made a criminal offense, and it is difficult to conclude.

3. The judgment of this Court

(a) Circumstances in which the defendant was categorized as a suspect in the course of investigation;

1) On April 4, 201, 07: around 15, 201, ○○: Around 15, in order to work at the parking lot of an apartment complex located in Daejeon (hereinafter “instant apartment complex”), he parked one ton of a male (hereinafter “suspect”) in the instant white-type cargo vehicle (hereinafter “suspected vehicle”) and parked one ton of a single ton of a single ton of a single ton of a passenger (hereinafter “suspected vehicle”) from the passenger vehicle of ○○ to start ○○ at a distance of about 4.2 meters from the vehicle of ○○○ and carried out the act of cutting down the luto.

2) At the time, ○○ had been driving his car immediately and went into the parking lot, and had family members contact with more than one person in the apartment parking lot. However, when the family members arrive in the parking lot, the suspect had already been dead and his family members failed to witness the suspect’s face. Meanwhile, ○○ had the suspect’s face at the time of the instant case, but the vehicle number of the suspect was not observed, and ○○ and the family members of ○○ and ○○ were not reported to the police on the instant case.

3) On April 5, 2011, 07: around 15, 201: Around 15, 000, ○○ was parked in order to work, the white cargo vehicle, which had been suspected of being on the preceding day, was approaching the vehicle with another driver’s new car, and the passenger car was parked in order to find a suspect together with the maximum ○○, a model.

A suspect, without discovering ○○○○ from the rear side of the ○○○○○, tried to leave the vehicle in the passenger car which was parked, and the ○○○○, who was behind the ○○○○○, was on board the vehicle in question and went to drive the vehicle in order to find the suspect. At the time, the ○○○ was the suspect who was trying to get off the vehicle, but did not regard the vehicle number of the suspect, and the ○○ did not regard the face of the suspect.

4) On April 5, 201, 201: 07: around 38, 201, ○○ had no particular statement about the suspect’s appearance, etc. while making a new accusation on the case and on the day before the police.

5) On May 14, 201, 201: around 00 : 15, 201, ○○ appeared to have the suspect’s face who had been seated in the driver’s seat after witnessing that the suspect was boarding and standing a white booming vehicle, but the vehicle number of the suspect was not considered.

6) On June 1, 201, around 18: 40, 201: the maximum ○○ showed that one ton of the cargo vehicles in the instant apartment site had been driven with his family members in order to provide meals, and the wife at the time reported the said vehicle to the suspect and discovered the said defective vehicle. On April 5, 2011, the suspect was the same as the suspect who was present at the time when the person was seated in the driver’s seat at the time, and confirmed the number of the said vehicle on April 5, 201 on the ground that the external shape of the vehicle was the same as the suspect who was present at around ○ on April 5, 201, and that the vehicle was the suspect at around around 18, 200 and the suspect was the suspect at around ○○ on the same day as the police number or the suspect at around 18:42 on the same day.

7 ) 피고인은 위 ' 충남□□나□□□□호 ' 흰색 1톤 포터 화물차량 ( 이하 ' 피고인 차량 ' 이라 한다 ) 의 소유주이고 , 채○○ 및 최○○ , 최○○의 처는 다음날인 2011 . 6 . 2 . 밤에 ■■ 지구대에 출석하면서 그곳에 앉아 있던 피고인과 대면하게 되었다 .

8 ) 채○○ 및 최○○은 위와 같이 피고인을과 대면한 후 피고인을 용의자로 지목하 였다 . 채○○은 그날 ■■지구대에서 피고인을 대면한 뒤 피고인이 용의자가 분명하다 고 하면서 용의자의 인상착의에 대하여 ' 피고인을 유등지구대에서 봤을 때 한눈에 알 아 봤고 , 형부와 언니도 알아 봤으며 , 당시에도 뿔테 안경을 쓰고 보통 머리에 30대 중 반의 남자로 피고인이 분명하다 ' 라고 진술하였다 . 최○○은 2012 . 1 . 6 . 검찰에 참고인 으로 출석하여 피고인이 2011 . 6 . 2 . ■■지구대에 임의출석하기 전에 자신이 경찰관에 게 용의자의 인상착의에 대하여 ' 뿔테 안경을 쓰고 , 머리는 짧지만 앞머리는 내린 스타 일이고 , 머리가 그렇게 크지는 않다 ' 라고 이야기하였다고 진술하였지만 , 최○○이 피고 인을 대면하기 전에 최○○이 위와 같이 이야기하였다는 범인의 인상착의 등에 대한 진술 내지 묘사는 기록화되어 있지 않다 . 또한 피고인이 용의자로 지목되는 과정에서 채○○ 및 최○○은 피고인과 인상착의가 비슷한 여러 사람을 동시에 대면하지 않고 바로 피고인을 대면하였다 .

B. Whether the vehicle of the defendant and the suspect are identical

On June 1, 201, 201: Around 40, 18: a witness witness the vehicle number of a white scoo, and accurately identified and reported to the police as 'Yongnam-gu or Marihoho-ho,' the above 'Scoo-ho' vehicle is also a white scood vehicle of the same type as the vehicle on which the suspect was aboard on April 4, 2011, and ○○○ and ○○○ identified as the suspect on June 18, 201. According to the fact that the vehicle was a white scood vehicle of the same type as the vehicle on which the suspect was aboard, and the defendant was identified as the suspect on June 18, 2012, and around 40: there is also a fact that there is a doubt that the defendant did not commit any act as described in the facts charged in the instant case.

However, on June 1, 2012: (a) around 18: 40, the circumstance in which the maximum ○○○ reported the Defendant’s vehicle is: (b) the driver’s vehicle is the same as the vehicle of the used person; (c) the driver’s vehicle is a cargo vehicle similar to the external appearance; and (d) the vehicle number is confirmed and reported; (b) the suspect’s vehicle is not a suspect’s identity on the basis of the vehicle number; (c) the suspect’s vehicle was not a suspect’s witness on April 5, 201; (d) the suspect’s vehicle number was not verified at the time; and (e) the suspect’s vehicle number was not confirmed on June 1, 201; and (e) the suspect’s vehicle similar to the vehicle of the suspect is likely to be confused as the vehicle of the suspect; and (e) the vehicle and the Defendant’s vehicle are not likely to be used as the vehicle of the same type on April 1, 2014.

C. Identity of the defendant and the suspect

1) Generally, in the criminal identification procedure by the appearance, etc. of the suspect, the witness’s statement in such a manner should be deemed to be low in credibility unless there are additional circumstances, such as where the suspect was aware of the suspect or a person having knowledge of the suspect, or where there are other circumstances to suspect him/her as a criminal in addition to the victim’s statement, it should be deemed that the witness’s statement in the criminal identification procedure is extremely low in credibility, unless there exist any additional circumstances, such as where the suspect and the suspect were aware of the suspect, or where there is any other circumstance to suspect him/her as a criminal in addition to the victim’s statement in the criminal identification procedure. Accordingly, in the criminal identification procedure, the witness’s statement in such a manner may be deemed to be a witness’s identity.

In order to enhance the credibility of a statement, a witness's statement or description on the suspect's appearance, etc. shall be recorded in detail in advance, and the suspect, including the suspect, shall be identified at the same time by facing the witness, and a similar person shall not be allowed to have any contact with the witness, and measures shall be taken, such as making the process and result of comparison in advance so that the value of evidence can be assessed ex post facto (see Supreme Court Decisions 2008Do1838, Apr. 9, 2009; 2008Do12111, Jun. 11, 2009, etc.).

2) As seen earlier, ○○○ and ○○○○ have confirmed whether the Defendant was a suspected suspect, not a person who used the Defendant among various similar objects, but a person who used the Defendant alone. As such, in the circumstance that ○○○ and ○○○○ presented that the Defendant was the largest owner of the vehicle in his seat, ○○ and ○○○ is highly likely to have been a suspect, and the Defendant’s vehicle cannot be identified as a suspect, ○○ and ○○○○ were the most likely to have been aware of the suspect, out of many persons similar to the suspect’s appearance, and the Defendant’s vehicle was not a suspect, but rather a suspect cannot be identified as a suspect at the time of ○○○○ and ○○○○ was the most likely to have been aware of the suspect’s face at the time of the instant case’s discovery of the suspect’s whereabouts. The lower court did not appear to have been aware of the suspect’s face on April 5, 201.

4. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge shall have jurisdiction over the transmission of leather

Judges Jeon Jae-chul

Judges Jeong-chul