Defendant 1 and one other

Defendant

He/she shall receive a decoration (prosecution) and office building (public trial)

Attorneys Kim Jae-min et al.

Suwon District Court Decision 2012Ma454 decided November 29, 2012

The judgment of the court below is reversed.

Defendant 1 shall be punished by a fine of three million won and by imprisonment of ten months with prison labor for each of the defendants 2.

Of the facts charged in the instant case, each of the facts charged are not guilty. Of the facts charged in the instant case, the facts charged by Defendant 1 and each of the multiple pages, as of September 30, 201 and October 4 through 5, 201, respectively.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts

Defendant 1 was forced to capture a motion picture from Defendant 2 and Nonindicted 2 on October 19, 201, and was forced to take a motion picture, and there was no access to the motion picture with Defendant 2, and there was only damage to the goods in the process of physical fighting with Nonindicted 1 (the Nonindicted Party in the judgment of the Supreme Court) and the body, and there was no damage to the goods owned by Nonindicted 1. However, the lower court found Defendant 1 guilty of all the facts charged in the instant case, thereby adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

As to the damage and damage of property, the court below's imprisonment (two years of imprisonment) is too unreasonable.

B. Defendant 2

The punishment of the lower court (ten months of imprisonment) is too unreasonable.

2. Determination as to Defendant 1’s respective communications between September 30, 201 and October 4 to 5, 2011

A. Defendant 1 consistently with the investigative agency from September 30, 201 to the trial court at the trial court, and denied this part of the facts charged by asserting that Defendant 2 was unaware of the date and time, place, and Defendant 2’s sexual intercourse with Defendant 2 before October 19, 201, since he was at the office of Nonindicted Party 3, around 20:00 and around October 4, 2011, he was at the office of Nonindicted Party 3.

As to this, the court below found the defendant guilty of all the above facts charged, but it is difficult to accept such judgment by the court below for the following reasons.

B. In the crime of adultery, the act is conducted under the circumstances in which it is difficult to expect the existence of direct physical evidence or witness, since it is difficult to expect the existence of a witness, since the act is conducted under the circumstances in which the parties are confidential or outside, and therefore, it is deemed that there is a comprehensive probative value for the crime before and after the commission of the crime (see, e.g., Supreme Court Decision 2007Do4977, Nov. 27, 2008). However, the burden of proof for the crime prosecuted in a criminal trial shall be borne by the prosecutor, and the conviction shall be based on the evidence with probative value that can lead the judge to believe that the facts charged are true to the extent that there is no reasonable doubt. If there is no such evidence, even if there is no doubt that the defendant is guilty, the interest of the defendant shall be judged (see, e.g., Supreme Court Decision 2005Do4737, Feb. 24, 2006).

In addition, since the facts charged should be stated clearly by specifying the date and time, place, and method of the crime, the time and time of the crime should be stated to the extent that it does not conflict with the time and time of double prosecution or prescription. In light of the nature of the crime charged, where the general indication is inevitable in light of the nature of the crime charged, and where it seems that there is no hindrance to the defendant's exercise of his/her right to defense, the date and time of the crime may be generally stated (see Supreme Court Decision 2002Do2939, Oct. 11, 2002). However, it is difficult to identify the date and time of the specific crime, and it is not permissible to enter the specified date and period in a lump sum without any grounds, and in such a case,

C. First, each protocol of interrogation of Defendant 2’s suspect at the police is inadmissible, since Defendant 1 consented to the purport that the contents of the protocol are denied in the court below’s trial, and there is no change in the attitude to the trial court, it is inadmissible.

D. Furthermore, as evidence consistent with each of the facts charged in this part, the statement made by Defendant 2 at the prosecutor's office in the interrogation protocol of suspect suspect, each of the statements at the court below and the court below, and the written confirmation prepared by Defendant 2 are recorded, but it is difficult to believe it as it is for the following reasons.

1) Defendant 2 stated that he had sexual intercourse with Defendant 1 on or before October 19, 201, on or before the second 1st of that date, Defendant 2 stated that he was only twice, and that he was unable to memory the accurate date at the time of the first investigation by the police immediately after the complaint of this case, but that he was first sexual intercourse in the gold village market at around September 20, 201, and the second sexual intercourse was made on or after the second 20th of that date on or around October 4, 201, the second 3rd of that date on the second 1st of that date on the second 20th of that date on the second 1st of that date on the second 3rd of that date on the second 1st of that date on the second 1st of that date on the second 20th of that date on the second 1st of that date on the second 1st of that date on the second 2nd of that date on the second 1st of that date on the second 1st of that date.

2) Regarding the background leading up to Defendant 1’s adultery, Defendant 2 stated in the prosecutor’s office that, after having informed Defendant 1 of his non-compliance with the fact of his conduct, the same drinking on the same day was frequently met, and that his body began to come into a sexual intercourse and came into a sexual intercourse. However, at the first time of September 30, 201, Defendant 1 and inn, the contents were different from the previous ones.

3) On the question of who is paid for the entrance fee, Defendant 2 stated that he was under the first investigation by the police, that he was paid in cash at the first time of the sexual intercourse, and that he was not memoryed for the second time of the sexual intercourse, but the prosecutor stated that Defendant 1 was paid 30,000 won in cash at the first time of the sexual intercourse, and that Defendant 1 was paid 25,000 won to 30,000 won in cash at the first time of the sexual intercourse at the court of the original trial, and that Defendant 1 was paid 25,00 won in cash at the court of the first time of the original sexual intercourse at the court of the first instance, and that this part of the statement also is inconsistent.

4) Meanwhile, according to the witness Nonindicted 4 and 5’s testimony at each trial, the confirmation document prepared by Nonindicted 3, the investigation report prepared by the senior prosecutor’s office of the Goyang District Prosecutors’ Office, and the fact-finding inquiry statement prepared by the chief of the Seosan Central Hospital, Defendant 1, along with Nonindicted 4, arrived at the front and rear-do of September 30, 201, after leaving the trip with Nonindicted 4, and coming to the front and rear-do of September 20, 201. On October 5 and 26, 2011, after having come to know-how due to food, Defendant 1’s arrival at each of the above 1-1, Seosan Central Hospital located at 1-1, the first 1-24, the first 3-1, and the first 1-1, the second 3-1, the second 10-3, the first 3-1, and the second 3-1, the second 10-2, the husband’s statement that Defendant 1 had no child.

5) In particular, according to Defendant 2’s cell phone calls, if they were to move from 1 to 20 hours to 3 mobile phones, they were to move from 1 to 20, and they were to move from 20,000 to 10,000,000 to 20:0,000 that they were to move from 20,000 to 3:0,000,000, and they were to move from 1 to 20,000,000 to 3:0,000,000, and they were to move from 20,000,000 to 3:0,000,000,000 to 20,000,000, and they were to move from 1 to 20:0,000,000,000,000 to 1:3:0,000,000,000.

6) Even if the defendants were to have expanded from around 201 to around 10, 201, the first day after the crime of this case was committed by Defendant 2, Defendant 1 and the second day after the second day of this case, it is hard to see that there were 0 or more times after the second day of this case, and that there were 9 or more times after the second day of this case's statement that there were 10 or more times after the second day of this case's statement, and that there were 1 or more times after the second day of this case's statement that there were 9 or more times after the second day of this case's statement that there were 9 or more times after the second day of this case's statement that there were 9 or more times after the second day of this case's statement that there were 9 or more times after the second day of this case's statement that there were 9 or more times after the second day of this case's statement that there were 9 or more times after the second day of this case's statement.

E. In full view of the aforementioned circumstances, it is difficult to believe that Defendant 2’s statement is not reliable, and therefore, it is not sufficient evidence to deem that Defendant 2’s statement was committed on the date and time of the crime specified in connection with the above part of the facts charged (it is not possible to specify the date and time of the charge as 20:0 on September 24, 201). However, even if Defendant 2’s call details include the date and time of the crime of this case from September 21, 201 to September 30, 2011, Defendant 2 and Defendant 2 cannot be found to have sufficient evidence to support that Defendant 2 committed the crime of this case on September 24, 2011.

F. Therefore, since each of the facts charged constitutes a case where there is no proof of crime, it shall be deemed not guilty under the latter part of Article 325 of the Criminal Procedure Act.

3. Determination as to Defendant 1’s occupation and non-existence of passage on October 19, 201

A. The summary of the facts charged in this part of the charges is as follows: (a) the Defendants conspired to photograph the motion picture that pretended to the vehicle kidnapping and sexual assault; (b) moved to the vehicle along with the intent of the Defendants to travel to the vehicle; and (c) taken this by using a dynamic image at the time and place specified in paragraph (3) of Article 2 of the facts charged in the instant case; (c) Defendant 1 asserted that Defendant 2 and Nonindicted 2 were forced to capture and detain Defendant 2 on the said date, and filed a complaint with the investigative agency against Defendant 2 and Nonindicted 2 on the said dynamic image. Thus, this part of the charges charged

B. According to evidence duly adopted and examined by the court below, Defendant 1 and Defendant 2 did not inform Defendant 2 of the fact that he had been forced to capture the above vehicle from his husband at the time of 10th of October, 201, and that he had been forced to capture the vehicle at the time of 1st of October, 201, and that Defendant 2 had been forced to capture the vehicle at the time of 1st of October, 200, and that he had been forced to capture the vehicle at the time of 1st of October, 200, and Defendant 2 did not appear to have known Defendant 2 of the fact that he had been forced to capture the vehicle at the time of 1st of October, 200. Meanwhile, Defendant 1 and Defendant 2 did not appear to have been allowed to have been allowed to take a video recording at the time of 2nd of that time, following the fact that he had been forced to capture the vehicle at the time of 2nd of that time, and that he had not been allowed to do so.

As to this, the court below found the defendant guilty of all the above facts charged, but it is difficult to accept such judgment by the court below for the following reasons.

C. First, each protocol of interrogation of Defendant 2’s suspect at the police is inadmissible, since Defendant 1 consented to the purport that the contents of the protocol are denied in the court below’s trial, and there is no change in the attitude to the trial court, it is inadmissible.

D. Furthermore, as evidence consistent with each of the facts charged in this part, the statement made by Defendant 2 at the prosecutor's office in the interrogation protocol of suspect suspect, each of the statements at the court below and the court below, and the written confirmation prepared by Defendant 2 are recorded, but it is difficult to believe it as it is for the following reasons.

1) Defendant 2: (a) had been asked to give money to Defendant 1 on the part of his prosecutorial office; (b) had been asked to do an act identical to that of Defendant 1’s non-indicted 6’s daily life; and (c) had been asked to do so on the part of the above Defendant 1 for a long time; and (d) had been asked to do so on the wind that Defendant 1 failed to achieve early purpose; (c) had been made difficult for the said Defendant 2 to give money; and (d) had been asked to give money to Defendant 1 on September 20, 201 (in the case of the police, at the first time on September 23, 201) and had been asked to do so on the part of the first prosecutorial office for the first time after being asked to receive money from Defendant 1 on the part of his husband; and (d) had been asked to receive money from Defendant 1 on the part of the first time after being asked to receive money from Defendant 1 on the part of the second prosecutorial office.

2) In addition, with respect to the date and time when Defendant 1 was urged to commit the act of abduction and sexual assault as mentioned above, Defendant 2 made up to Nonindicted 6, and written the confirmation of October 19, 201, which was sent to Nonindicted 6, stating, “At least two weeks before the beginning of the investigation.” On October 19, 201, Defendant 2 made a statement that Defendant 1 had a specific mother or specific mother within the vehicle before Defendant 1 and sexual intercourse with the police. The second investigation was conducted by the police, and Defendant 1 made a specific mother or a specific mother before Defendant 1’s house or on October 12 through 13, 201, and Defendant 1 made a statement to the prosecution that it was made on October 19, 201 as the first mother on the day of the instant case, and that Defendant 1 and the second sexual intercourse were made on October 23 through 19, 201, and the first statement was made at the investigative agency’s first time in the trial.

3) However, according to the defendants' mobile phone calls, when considering the defendants 2' statements that the defendant 1 used only three occasions, presumption that they would have used telephone conversations between them. Nevertheless, there is no other mobile phone call between the defendants. As to questions asked by the prosecutor about the circumstances, the defendant 2 made a statement that he had no cell phone in order to conceal his identity and not to raise his relationship with the defendant 1 to his wife, but on the other hand, made inquiries about the situation where the defendant 1 and the defendant 1's mother appear to have known that the defendant 2 made a statement to the police officer that he used the mobile phone, and that the defendant 2 made a statement to the effect that the defendant 1 had no other cell phone used the mobile phone, and that the police officer made a statement to the effect that the defendant 1 had no other cell phone used the mobile phone, and that the defendant 2 made a statement to the effect that the defendant 1 had no other cell phone used the mobile phone, and that the defendant 2 made a statement to the police officer before and after the crime was committed.

4) At the trial court, Defendant 2 stated that Defendant 1 had been planned in advance and had experience in a sexual intercourse even before the formation of a dynamic relationship, Defendant 2 stated that he was unable to think that there should be a tension because of the same situation as Defendant 2’s appearance of a dynamic image that should be more violent if he was captured to create a dynamic image, and that he did not think that there should be a tension because of the same situation as Defendant 2’s appearance of a dynamic, which is too unusual, and that it was extremely unusual (in the original trial, Defendant 2 was able to see that the tension disorder that Defendant 1 she was fright at the time, and that Defendant 2 did not have any other reasons to see that he did not have any other fright at the time when she made a statement as Defendant 1’s her husband at the time, and that it was difficult to view that he did not have any other tension with Defendant 2 as Defendant 2’s family at the time when she made a statement.

5) In addition, with respect to the process of the instant case’s intervention by Nonindicted 2, Defendant 2 made a statement in the police that Defendant 1 was tending as a fake and required by Nonindicted 2 (Evidence No. 187 of the Record). Defendant 1 stated in the court of the lower court that “I would like to embling a woman in the course of kidnapping” (this part was also the same in the prosecutor’s office) and that Defendant 1 made a statement that Nonindicted 2 needed during the police’s statement when Defendant 1 reported kidnapping, etc. by Defendant 2, but (the trial record No. 100 of the trial record) was not thought to be necessary until the testimony of Nonindicted 2 was made in the court of the first instance, and that there was no inconsistency or consistency in the statement between Nonindicted 2, which had been made only in Pyeongtaek 2, since it was necessary by the helper at the time.

6) Defendant 2’s statement on the motive in which the instant videos were taken is difficult to understand in light of the doctrine by itself. Defendant 2 stated that Defendant 1 would have a favorable position in a divorce lawsuit against Nonindicted Party 1 by making a false confession that Defendant 1’s husband would have been made if he made a report to the police after creating the motion pictures of the instant case and sexual assault and then made a false confession. However, this is based on the content that Defendant 2 would have a favorable position in the divorce lawsuit against Nonindicted Party 1, who is the husband of the instant case. However, this is ultimately based on the fact that Defendant 2 would have to be recognized as a criminal act of sexual assault that was not actually committed. In the event of success as planned by Defendant 2, it is difficult to obtain the above explanation of the aforementioned motive when taking into account the heavy criminal liability imposed on him.

In other words, if the investigation commences after Defendant 2’s oral statement, it is anticipated that the investigation period will be investigated against Nonindicted 1. Although Nonindicted 1 is faced with a divorce situation, it is impossible to understand if he is a person who has several common sense and only has sexual intercourse with another person. Therefore, the investigation agency may pursue Nonindicted 1 and Defendant 2 against the motive of the crime. There is no explanation as to how to harm the motive of Defendant 2 caused such crime (this is, therefore, it can be seen that the truth was easily revealed as in the facts charged in this case. However, telephone conversations with Defendant 1 who has a mobile phone to conceal his identity and conduct three times or more, without informing Defendant 2 of the fact that there was a mobile phone to conceal his identity, and it is not consistent with the motive of Defendant 2 to manage his behavior in this case to the extent that telephone conversations does not cut off, and thus, it is easy and consistent with the motive of Defendant 2 and Defendant 2’s act in this case.

E. Next, there are Nonindicted 6 and Nonindicted 2’s statements in the court of the original instance and statements in each investigation agency, which are consistent with or partially consistent with the above facts charged, but this is difficult to believe this as is or is insufficient to recognize the above facts charged in full view of the above circumstances and the circumstances to be seen below.

1) As Defendant 1’s husband Nonindicted 1’s husband, Nonindicted 6, upon Nonindicted 1’s request from Nonindicted 1 to clarify Defendant 1’s unlawful act, had Defendant 2 go against Defendant 1, and had Nonindicted 2 monitor Defendant 2. At the last time, Nonindicted 6 received a telephone from Defendant 2 during the period from October 19, 201 to 4:00, and Defendant 2 received a photograph pertaining to Defendant 1’s unlawful act. At around 17:00 on the same day, Nonindicted 6 reported the video of this case, and followed it to Defendant 2, and came to know the fact that the Defendants were gathered, and immediately contacted Nonindicted 1, and had Defendant 2 undergo a confirmation document issued by Nonindicted 1 with Nonindicted 1’s order.

However, according to Defendant 2 and Nonindicted 6’s cell phone phone call records, there is no call between Defendant 2 and Nonindicted 6 before and after around 3:00 on October 19, 201, and around 4:0. As to this, Defendant 2 made a statement that Defendant 2 was hedging with Nonindicted 2 on October 19, 201 after lending Nonindicted 2’s phone from the prosecutor’s office and the court of original trial to Nonindicted 6 on the new wall on October 19, 2011, and on the same day at around 04:0 on the same day (for the time when Nonparty 2 took place, it is consistent with Defendant 2).

Meanwhile, Nonindicted 2 made a statement at an investigative agency on October 19, 201 that there was no fact that Nonindicted 2 lent his mobile phone to Defendant 2. At the court of the court below, Nonindicted 2 made a statement that Defendant 2 used his mobile phone because of the lack of his mobile phone from October 19, 201, and made a statement consistent with Defendant 2’s above statement. This is not only a statement that is difficult to obtain by considering the fact that Defendant 2 took the video of this case into his own cell phone, but also a statement that was made by Nonindicted 6 and Nonindicted 2 from October 19, 201 to October 03:0, 205 according to each telephone record of Nonindicted 2 from October 19, 201 to October 19, 201, at least two hundred five hundred five and five hundred five and five hundred and five hundred and five hundred and one of the above phone records should be made on October 19, 2011.

However, with respect to the above currency content, Nonindicted 2 notified Nonindicted 6 of the fact that the Defendants had sexual intercourses with Nonindicted 6 on October 19, 201, at the prosecutor’s office, at the second time (the above 01:54th time) on October 19, 201, and Defendant 2 notified Nonindicted 6 of the fact that he had sexual intercourses with Defendant 1 to Nonindicted 6 at the third time of the new wall (the above 03:06 time appears to be in place). As such, it is inconsistent with each of the above statements by Defendant 2 and Nonindicted 6. Accordingly, from around 00 to 04:00 on the day of this case, Nonindicted 6’s statement to the effect that Defendant 2 had a photograph related to Defendant 1’s unknown character is not believed, and related to this, Defendant 2’s statement cannot be trusted.

2) 한편 공소외 2는 검찰에서, 이 사건 당일 새벽 2시경 공소외 6에게 피고인들이 성관계한 사실을 알려 주자 공소외 6이 피고인들의 성관계 사실을 듣고 깜짝 놀랐다고 진술하였다가, 원심 법정에서는 (01:54경 통화에서) 공소외 6에게 피고인들의 성관계 사실을 말하였으나 공소외 6이 잠결에 ‘뭐’라고 한 후 전화를 황급히 끊었고, 위 03:06경 전화는 피고인 2가 시켜서 한 것으로서, 통화 내용은 공소외 6에게 ‘저는 이제 집에 들어갑니다’라고 말한 것이라고 진술하였고, 이에 반해 공소외 6은 위 01:59경 통화에서 공소외 2로부터 피고인들이 성관계를 한 사실을 듣지 못하였고, 공소외 2로부터 2011. 10. 19 03:06경 받은 전화는 공소외 2가 집에 들어간다는 내용이라고 진술하였는바, 공소외 2와 공소외 6의 위와 같은 진술은 피고인들의 성관계 사실을 고지받은 공소외 6의 태도에 관하여 서로 어긋나는 내용이어서 납득하기 어려울 뿐만 아니라, 비록 공소외 6이 공소외 2에게 피고인 2의 행동을 감시하도록 시켰다는 점을 고려하더라도, 새벽 3시경에 특별한 내용도 없이 이제 집에 들어간다는 내용의 통화를 주고 받았다는 공소외 6, 2의 각 진술 역시 이해하기 어려운 행동에 대한 합리적인 설명이 없는 것이고, 특히 공소외 6에게 이제 집에 들어간다는 내용의 전화를 한 것이 피고인 2가 시켜서 하게 되었다는 공소외 2의 진술은 이 사건과 관련하여 사전에 알지 못한 채 관여하게 되었다는 공소외 2의 주장을 납득할 수 없게 만들기에 충분한바, 이 부분 공소외 2의 말이 맞다면 공소외 2 역시 이 사건 동영상 촬영과 관련하여 사전에 피고인 2와 의견을 교환하였을 가능성이 크고, 공소외 2의 진술이 모두 거짓이라면 그와 같이 허위의 진술을 하는 이유에 대하여 합리적인 설명이 필요한데 그러한 설명이 없으므로, 결국 이 사건 동영상 촬영 이후의 정황에 대한 피고인 2의 진술 역시 믿을 수 없는 것이 된다.

F. If so, the video of this case remains as direct evidence of the above facts charged. According to the video of this case, while Defendant 1 simply takes the dynamic image in the process of the above dynamic image, it is acknowledged that it is true that Defendant 1 "I would like to say," "I would like to say," "I would like to see why I would like to see," "I would like to see, if I would like to see, I would like to see, I would like to see, I would like to see, if I would like to see, I would like to see, I would like to say, "I would like to see, if I would like to see, I would like to see, I would like to see," and we would like to say, "I would like to see, if I would like to see, in advance, I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that we would like to see the above circumstances.".

However, Defendant 2 stated that Defendant 1 made a statement that Defendant 1 had been kidnapped as if he had been kidnapped in advance, rather than Defendant 1 had actually been kidnapped, but Defendant 2 had a lot of uneasible and uneasible circumstances as seen earlier, and Defendant 2 had a heavy burden on Defendant 1 at the time, such as “I would see why I would like to do this,” “I would see I would see I would see I would see I would like to have been kidnapped,” “I would see I would see I would see I would see I would see I would have been the date when I would have become the date when I would have come at the time.” However, Defendant 1's above statement cannot be said to mean the most act of kidnapping and sexual assault as long as Defendant 1 had committed an act that could not be seen as having been at the time when I would have come at the time of completion.

On the other hand, Defendant 1 stated that he had no credibility in Defendant 2’s statement claiming that he had taken the video of this case, even though he had a son’s own photograph during the process of photographing the video of this case, he did not appear to have any part of the video of this case. The video of this case, which was attached to the records of this case, is merely a video file which was submitted by Nonindicted Party 6 to the process of his own motion picture of this case, and that he had no possibility of signing the video of this case, and that he could not be seen as having been forced to use the video of this case, even if he did not appear to have a son’s own motion picture of this case, because he had no possibility of signing the video of this case. Defendant 2’s motion picture of this case, which was already caught by Defendant 1’s motion picture of this case, could not be seen as having been exposed to his own motion picture of this case. Defendant 2’s motion picture of this case.

G. Therefore, since this part of the facts charged falls under a case where there is no proof of crime, it shall be deemed not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act.

4. Determination on Defendant 1’s destruction of and damage to property

In full view of the following circumstances that are duly admitted and examined by the court below, i.e., ① Nonindicted 7, at the date and time indicated in the facts charged in this case, told Nonindicted 1 that the Defendant was able to talk with Nonindicted 1 because of the sound shouldered from the first and second floor, he was the father, and ② Defendant 1 himself was unable to enter the house due to the fact that Nonindicted 1 was in a second floor between Nonindicted 1 and Nonindicted 1, and due to the fact that he was able to fully recognize the fact that the Defendant destroyed the goods owned by the victim as indicated in the judgment of the court below. Thus, the above argument by the Defendant is without merit.

5. Ex officio determination as to Defendant 2’s cross-sections

A. Ex officio determination as to each transit on September 30, 201, and October 4 through 5, 2011

Although Defendant 2 led to confessions of this part of the facts charged at the police, the prosecution, the original trial, and the court of the trial, Defendant 2 is merely the fact that Defendant 1 and Nonindicted 1 are the married couple under the law, which alone does not constitute evidence to prove the confessions of the above facts charged. Since there is no other evidence to reinforce the above confessions, the confessions constitute only a kind of evidence unfavorable to the defendant and cannot be pronounced guilty on the sole basis of the above evidence. Accordingly, the above facts charged constitute a case where there is no evidence to prove a crime, and thus, it is not guilty under the latter part of Article 325 of the Criminal Procedure Act.

B. Ex officio determination as to the passage between October 19, 201

As seen above, as long as Defendant 1 was acquitted on the part of the adultery on October 19, 2011, there is room for different determination as to Defendant 2’s adultery on the same date.

Comprehensively taking account of the evidence duly adopted and examined by the court below, it is acknowledged that Defendant 2 and Nonindicted 2 committed the sexual intercourse against Defendant 1’s will, on or around October 18, 201, between Defendant 1’s own intent and Defendant 2, on the part of his own, and against his own intent, it was in the vicinity of the Simsan-Eup, Seo-gu, Seo-gu, Seoul. Defendant 2 waiting outside the vehicle and Defendant 2 knew that he was the spouse of Defendant 1 in the vehicle. The above acts of Defendant 2 and Nonindicted 2 constitute the act of forced sexual intercourse against his will by combining two or more persons, but also constitutes the act of sexual intercourse with the female spouse at the same time. Thus, since Defendant 2’s act constitutes a single act, it can be deemed that Defendant 2’s act constitutes two crimes. As long as the prosecutor indicted as a single crime of this case, Defendant 2 cannot be exempted from the responsibility for the crime of adultery by the above act.

Meanwhile, Defendant 1 asserted that the combination of substantial sexual instruments was not achieved between Defendant 2 at the time of the instant case, while Defendant 2 asserted that a substantial sexual intercourse was achieved between Defendant 1 and Defendant 1, Defendant 2 should bear the responsibility for the charge of the crime of the crime of the crime of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes of the crimes

6. Conclusion

Despite the above circumstances, the court below found Defendant 1 guilty of the charges of this case and each of the multiple pages, Defendant 2, and each of the multiple pages, September 30, 201, and October 4 through 5, 2011. Thus, the court below erred in the misapprehension of facts and adversely affected the conclusion of the judgment. Thus, the part pointing this out among the grounds for appeal is with merit.

However, the court below rendered one punishment against the Defendants on the ground that each of the facts charged in the instant case, including the aforementioned innocence, is concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the judgment of the court below cannot be reversed in its entirety.

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendants' above assertion of unfair sentencing, and the judgment of the court below is reversed, and it is again decided as follows.

On December 12, 2008, Defendant 2 was sentenced to a suspended sentence of ten months for an offense of violating the Electronic Financial Transactions Act, etc. on October 12, 2008, and on May 28, 2010, on September 15, 2010, Defendant 2 was sentenced to six months of imprisonment with labor for the offense of violating the Electronic Financial Transactions Act, and the said sentence became final and conclusive on September 15, 2010, and the said suspended sentence became null and void. On January 13, 2011, Defendant 2 was sentenced to two months of imprisonment with labor for the crime of embezzlement in the Suwon District Court’s Ansan Branch, and completed the execution of each of the said sentence in the Ansan Prison.

1. Defendant 1

At around 14:10 on February 6, 2012, the Defendant found the victim non-indicted 1’s residence in Pakistan-si (hereinafter address 1 omitted), but Non-indicted 1 did not open a door in the absence of opening the door locking system, and the Defendant got out of the total amount of KRW 4,050,00,000, such as computer monitors used for the victim’s color phones located in the musical room through the above residential stairs, and damaged them.

2. Defendant 2

(a) Embezzlement;

On September 201, 201, the Defendant received a proposal from the victim to take a fluorial surface by Non-Indicted 1’s wife, Defendant 1, who was suspected of having a fluorial body from the victim, at the office of Non-Indicted 6 of the victim Non-Indicted 1 (hereinafter address 2 omitted), to request the victim to take a fluorial surface by driving his fluorial body, and received a delivery of a fluorial body set of KRW 6 million at the market price owned by the victim, consisting of one fluorial body, three fluorial body, and one fluorial body.

On October 26, 201, the Defendant arbitrarily borrowed KRW 500,000 from the Goyang-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong 895-1, and embezzled the above Kamera as security.

(b) Intersections;

On October 19, 201, the Defendant, despite being aware that Defendant 1 was a spouse, provided the Defendant with a single sexual intercourse with Defendant 1 within the vehicle (vehicle number omitted) owned by Defendant 1 in the vicinity of the Simsan-Eup, Seo-gu, Chungcheongnam-gu, Chungcheongnam-gu, Seoul, Seoul, with the knowledge of his/her spouse.

1. Defendant 2’s oral statement in the original trial and in the original trial

1. Each of the original judgments made by Nonindicted 6 and 1

1. The statement to the effect that Defendant 1 sent clothes to Nonindicted Party 1’s house at the lower court’s court’s court room and went back to the second floor, in the course of getting off the computer and musical instruments, etc.

1. The statement to the effect that Nonindicted 8, at the second floor in the court of the court below, she sawd the voice from the second floor of Nonindicted 1’s house to the bath, and that the Defendant and Nonindicted 1 got down, after the passage of the money.

1. The image fit for the CD (the video recorded in relation to Defendant 1 and Defendant 2);

1. Entry of the marriage relation certificate against Defendant 1

1. Statement of the damage dog prepared by Nonindicted Party 1

1. Entry in the written complaint prepared by Nonindicted 6

1. Descriptions of a copy of the loan agreement;

1. A criminal investigation report prepared by a senior judicial police officer of the athletic wave police station;

1. Previous records of judgment: A criminal investigation report, criminal records, and other inquiry inquiry report;

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant 1: Article 366 (Selection of Fine) of the Criminal Act

B. Defendant 2: Article 355(1) of the Criminal Act (the point of embezzlement and the choice of imprisonment), Article 241(1) of the Criminal Act (the point of publication)

1. Aggravation for repeated crimes;

Defendant 2: Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant 2: the former part of Article 37 of the Criminal Act, Articles 38(1)2 and 50 of the Criminal Act (within the scope of adding up the long-term punishments of the above two crimes)

1. Defendant 1

Although the defendant was unable to agree with the victim and the victim wanted the severe punishment of the defendant, the defendant was under the law of this case, and the defendant was living in another place, and the defendant was found to have taken into account his clothes, etc., and the defendant was living in the family of the victim, but the defendant was not opening the door, and there are circumstances that may be considered in the motive and circumstance of the occurrence, and the defendant's age, character, behavior, intelligence and environment, family relationship, circumstances leading to this case, circumstances after the crime, and the sentencing conditions specified in the arguments of this case shall be determined as ordered by the disposition.

2. Defendant 2

All of the facts charged of this case are confessioned by the defendant, and the victim does not want the punishment of the defendant under the agreement with the victim. However, although the defendant's coercion against the defendant 1 appears to have been forced to commit the crime of this case, the quality of the crime is very inappropriate, the criminal is committed during the repeated crime period, and only the defendant appealed against the defendant, while the appellate court found the defendant not guilty of part of the facts charged acknowledged by the first instance court, it cannot be deemed to violate the principle of prohibition of disadvantageous alteration under Article 368 of the Criminal Procedure Act (see Supreme Court Decision 2002Do5679, Feb. 11, 2003, etc.), the defendant's age, character, character, intelligence and environment, family relationship, circumstances leading to this case, circumstances after the crime, and various circumstances constituting the conditions of sentencing under the oral argument of this case shall be determined by taking into consideration the sentence as stated in the order of this case.

1. The non-acceptance of the defendant 1

A. Summary of the facts charged

On December 12, 2011, the Defendant drafted a written complaint using a Rad Protocol for the purpose of having Defendant 2 and Nonindicted 2 punished for a criminal charge. The content of the written complaint was that “ around October 19, 201, Defendant 2, and Nonindicted 2 got involved in a vehicle contact before Defendant 1’s residence, detained Defendant 1 for about three hours, and forced Defendant 1 to do an unobligatory act,” and thus punished.

However, in fact, Defendant 2’s husband’s non-indicted 1’s non-indicted 6’s non-indicted 1’s non-indicted 1’s unfolded with the request of the Defendant to affix an unfolded plane and came to know all of the Defendant, and then, it became close to the Defendant. Defendant 2 stated that “The Defendant, as he was engaged in kidnapping and sexual assaulting the Defendant, would be a favorable position in the divorce lawsuit on the part of Non-indicted 1 at the police after photographing the video image, so that the Defendant could have taken a favorable position in the divorce lawsuit,” and there was no fact that Defendant 2 and Non-indicted 2 et al. had detained the Defendant on the vehicle.

Nevertheless, around December 7, 2011, the Defendant received a written complaint stating the aforementioned false facts from the public service offices of the public prosecutor's office of the Goyang-dong Office of the government branch of the Dong-dong Dong-dong Dong-dong, Seoyang-gu, Seoyang-si, and rejected Defendant 2 and Nonindicted 2.

B. Determination

As seen earlier, this part of the facts charged constitutes a time when there is no proof of the crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

2. The part concerning each part of the defendant 1

A. Summary of the facts charged

The Defendant, on April 20, 1985, is a spouse who has completed the marriage report with Nonindicted Party 1, and is also a spouse;

1) On September 30, 201, around 20:00, at the inn room where it is impossible to find out the trade name located in the gold village market in the gold village, from which Defendant 2 and Defendant 2 met once.

2) From October 4 to 5, 201, around 20:00, to the inn room where it is impossible to find out the trade name in the Dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si,

3) On October 19, 201, between 01:00 to 02:00 on the street, Defendant 2 and Defendant 2 were sent one time to each other within the vehicle (vehicle number omitted) owned by the Defendant in the vicinity of the Silsan-Eup, Seo-gu, Chungcheongnam-gu, Seoul Special Metropolitan City.

B. Determination

As seen earlier, each of the facts charged constitutes a case where there is no proof of the relevant crime, thereby not guilty under the latter part of Article 325 of the Criminal Procedure Act.

3. The part between September 30, 201 and October 4 to 5, 201, respectively, of Defendant 2-2 and each of the parts on September 30, 201

A. Summary of the facts charged

With knowledge that the above Defendant 1 was a spouse,

1) On September 30, 201, around 20:00, at the inn room where it is impossible to find out the trade name located in the gold village market in the gold village in the Sinju-si, Geumju-si, the names of Defendant 2 and the single sexual intercourse with Defendant 2; and

2) From October 4 to 5, 201, around 20:00, at the inn room where it is impossible to find out the trade name located in the Dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si,

B. Determination

As seen earlier, each of the facts charged constitutes a case where there is no proof of the relevant crime, thereby not guilty under the latter part of Article 325 of the Criminal Procedure Act.

Judges Kim Jong-ho (Presiding Judge)