The prosecutor's appeal is dismissed.

1. The gist of the grounds for appeal is that the victim was investigated by the police three times in total and stated accurately and in detail the content of the instant crime and the situation before and after the instant crime.

In addition, the Defendant escaped immediately after the instant case, while abandoning credit cards and specifications, etc., and said that he did not see the victim, and agreed to give 5 million won to the victim.

In light of these circumstances, although the credibility and probative value of the victim’s police statement can be recognized, the lower court erred by not guilty on the ground that there is no evidence to prove the facts charged in the instant case.

2. Determination

A. Although the Defendant denied the facts charged and the protocol in which the investigative agency, which supported the facts charged, stated the statement made by the person making the original statement, and where the defendant was unable to attend the court and cross-examine the defendant, if the facts of his direct experience in the protocol are accurately and in detail described in the specific circumstances and the detailed contents of the defendant's cross-examination, the defendant can clearly recognize the exact purport of the statement even without going through cross-examination, and there are special circumstances where it is difficult to recognize the strong probative value in light of the form and contents of the protocol due to lack of credibility, such as the content conforms to the empirical rule, or there are other flexible evidence to support the credibility and probative value of the statement made in the protocol, such protocol cannot be acknowledged as having real value of evidence, and thus recognizing the facts charged as the main evidence cannot be permitted in principle as evidence.

(see, e.g., Supreme Court Decision 2005Do9730, Dec. 8, 2006). The Defendant consistently from the police to this court, and had sexual intercourses over two occasions with the victim, but did not rape.