(영문) 부산고등법원 2019.7.11. 선고 2019노28 판결

On September 17, 2002, the Defendant was sentenced to a suspended sentence of two years for a violation of the Act on the Protection, etc. of Juveniles from Sexual Abuse at the Busan District Court, and on January 20, 2004, the Defendant was sentenced to a seven-year imprisonment with labor for a violation of the Act on the Punishment, etc. of Sexual Crimes and Protection, etc. of Victims from the Busan High Court on February 2, 2004 and the said sentence became final and conclusive on February 2, 2004, and the said suspended sentence becomes void and the execution of the final sentence is completed in the Jinju District Court on March 9,

【Criminal Facts】

The Defendant, in the absence of certain income at the time and the debt amounting to KRW 80,00,000,000 for every month, has to pay KRW 1,00,000,000 to the interest of every month, but without any particular reason, she fright to gambling by sending gambling money and living expenses.

On May 21, 2002, from around 23:20 to around 23:20 on May 21, 200, the Defendant discovered the victim B (bee 22 years of age), and prevented the victim from resisting by means of intimidation with deadly weapons, etc., and then deducted the victim from the victim a bank ordinary deposit passbook, C Bank installment savings passbook, identification card, seal, etc., and discovered the password of the above C Bank ordinary deposit passbook. On May 22, 2002, on around 12:18, 200, the Defendant died of the victim's chest by taking advantage of the ordinary deposit passbook of the victim, which was taken as above, using the passbook of the victim's ordinary deposit located in D Bank S Bank Mo-gu, Busan, and by threatening the occurrence of the above crime, and then, the Defendant murdered the victim's chest by taking advantage of the deadly weapon of the victim's chest in Busan and lower places.

2. The judgment of the court below

In the lower court, the Defendant argued to the effect that there was a mistake of facts among the grounds for appeal, and the lower court, which was conducted as a participatory trial, accepted the jury’s verdict of conviction (as a result of a verdict: seven persons guilty and two persons not guilty), and convicted the Defendant

3. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

Although the Defendant: (a) took a shelter from the victim; (b) withdrawn the deposit or terminated the installment savings in the possession of the victim by using bankbooks, seals, etc., which were contained in the bank; (c) however, there is no fact that the victim deducteds the bank from the victim; or (d) murdered the victim in the process. Nevertheless, the lower court found the Defendant guilty of the facts charged in the instant case, which erred by misapprehending

2) Unreasonable sentencing

Imprisonment with prison labor declared by the court below is too unreasonable.

(b) Prosecutors;

The sentence imposed by the court below on the defendant is too uneasible and unfair.

4. Progress of lawsuit.

A. Judgment of the court prior to remand

The court before remanded the following indirect facts acknowledged by the other indirect evidence other than a part of the testimony made by the witness F of the court below, which is the defendant's statement among the evidence revealed by the court below. In other words, the defendant withdraws the deposit with the victim's passbook and terminates the victim's installment savings on the ground of the victim's counter page after 20 days, the process of obtaining the bank deposit password during the withdrawal process, the defendant's E living together with the defendant at the time reported Mabom to the defendant's assistance and the defendant's vehicle. The defendant committed robbery with the defendant's difficult economic situation at the time, the defendant's difficult economic situation at the time, the defendant committed robbery with a similar multiple laws around 203 after the crime of this case, and there is no credibility in the defendant's statement, and the defendant searched the defendant's cell phone "the statute of limitations of public prosecution," and the abolition of the prescription of public prosecution," the court ruled that the defendant dismissed the defendant's appeal to the extent that reasonable doubt was proven in the process of taking the victim's property and murder.

B. Judgment of the Supreme Court

However, the Supreme Court, however, states that indirect facts that the defendant withdrawn his deposit in the victim's passbook and terminated the victim's installment savings are reliable in the victim's statement can be used as sufficient indirect evidence to acknowledge the facts charged of this case along with E's statement. However, it is very insufficient in itself to form indirect evidence to acknowledge the same robbery as the facts charged of this case. The E's statement contains questions about credibility in light of the fact that the defendant's crime at risk of bombing and obtaining another person's assistance, or that the defendant's failure to memory except for those that the defendant was bombling with his help, the time when the victim's death was presumed, the financial situation at the time of the defendant's death, the possibility of the crime by a third party, etc., and after a thorough examination of these matters, even if all these circumstances were considered, it can be proven that the defendant committed the crime of this case only if he committed the crime of this case.

Therefore, the judgment of the court below which found the Defendant guilty of the instant crime was reversed on the ground that the judgment of the court below was erroneous for the reasons stated in the judgment prior to the remand.

5. The judgment of this Court

A. Relevant legal principles

In the case of a crime, the statutory penalty, such as murder, may be recognized as conviction without direct evidence. However, even in such a case, there should be proof to the extent that there is no reasonable doubt, and one of the indirect facts ought to be supported by logical and empirical rules and scientific rules as well as logical and empirical rules. Therefore, the recognition of conviction ought to be sufficiently superior to deem the Defendant to have committed the crime, considering that such indirect facts as the motive of the crime, the selection of the means of the crime, the process leading to the crime, the attitude of the criminal defendant before and after the crime, and the attitude of the defendant before and after the crime are deemed as indirect facts (see, e.g., Supreme Court Decision 201Do1549, May 30, 2017).

On the other hand, Article 8 of the Court Organization Act provides that "any decision at a trial of a superior court shall bind the lower court with respect to the relevant case," and even after the latter part of Article 436 (2) of the Civil Procedure Act provides that any actual and legal decision at the court of final appeal which the court of final appeal considers as the ground for reversal shall bind the lower court. Although the Criminal Procedure Act does not provide any corresponding express provision, the court of final appeal, which is based on the principle of law, may intervene unreasonably in the propriety of the judgment at the court of final appeal as to fact-finding pursuant to Article 383 or 384 of the Criminal Procedure Act, and the court of final appeal, which serves as the ground for reversal of the judgment at the court of final appeal, has a binding effect on the final appeal. Therefore, in a trial of the relevant case, the court, which is remanded from the court of final appeal, shall be bound so long as new evidence is presented during the trial process after remand and changes in the evidential relation (see, e.g., Supreme Court Decision 2008Do10572

B. Order of determination

The prosecutor asserts that the defendant made the same speech and behavior in the investigative agency as recognizing the crime of this case, and that this is supported by admissible evidence. The prosecutor's words and actions of the defendant asserted by the prosecutor include direct evidence such as the confession or self-help of the defendant. Thus, the prosecutor first examines them, and then judged the probative value of the E statement corresponding to the main evidence proving the indirect facts relevant to the death of the victim by abandoning the victim's dead body, and then, then, the prosecutor examines indirect facts acknowledged by the remaining evidentiary evidence, including the evidence newly examined at the trial after remand

1) Part 1 of the police officer’s statement in the court below’s statement in F of F of F of F of Busan District Police Agency which investigated the instant case; part of the police officer’s statement in F of F of F of F of Busan District Police Agency which led the Defendant to the confession of the instant crime while smoking tobacco at the time of the investigation; part of the Defendant made a statement that the Defendant was able to anticipate her conviction by talking with his/her own and his/her return dog, which he/she saw, and that the Defendant led the Defendant to Busan District Prosecutor’s Office in the course of forwarding the Defendant to Busan District Prosecutor

The detailed contents of the Defendant’s speech and behavior made by F of the original instance witness F in the investigative agency is as follows.

【Organization of Defendant’s speech and behavior at Police】

A person shall be appointed.

Article 316(1) of the Criminal Procedure Act provides that "If a statement made by a person other than the defendant (including a person who was examined as a suspect before the institution of public prosecution or who was involved in such investigation; hereinafter the same shall apply in this Article) at a preparatory hearing or during trial contains the contents of a statement of the defendant, such statement may be admitted as evidence only when it is proved that such statement was made in a particularly reliable state." In this context, "the statement made under particularly reliable state" refers to cases where there is little doubt about any falsity that the statement made is made, and there is a specific and external circumstance that guarantees the credibility or decentralization of the contents of the statement (see, e.g., Supreme Court Decision 2015Do16105, Dec. 10, 2015). In other words, in order to recognize the admissibility of the testimony of the investigator, the defendant's statement at the time of the investigation should be prevented from being made in the same manner as the statement made at the preparatory hearing or during the trial."

However, in light of the following circumstances acknowledged by the record, it was sufficiently proven that the statement made by the defendant to F was made in F under particularly reliable circumstances.

It is difficult to see that the part of the statement of the witness F of the court below concerning the defendant's statement is inadmissible.

In other words, the defendant and his defense counsel argued that ① whether the above statement was made to the investigative officer or not, and the process of such statement has been resolved by the investigative agency. ② The defendant's above statement appears to have been made without the presence of the defense counsel when the defendant was detained by the warrant. ③ When the defendant makes the above statement, the defendant's right to refuse to make statements and right to appoint defense counsel was not notified in advance, and the defendant's statement was made without the record of the investigation process, and it appears that the defendant's statement included in F's testimony was made without the lawful investigation method for the suspect as prescribed by the Criminal Procedure Act overall. ④ The defendant asserts that he stated the above statement to the effect that he was given convenience such as tobacco, etc. ④ In fact, the defendant appears to have been given convenience such as avoiding tobacco in the time to rest in the investigation process or disposing of stocks held by him, but it is not recognized that the defendant's testimony was admissible at least for the purpose of considering credibility of the defendant's testimony and behavior of the investigative officer's testimony to the effect that it was not admissible.

Therefore, it is unlawful for the court below to consider the witness F’s statement as evidence, which contains the witness F’s statement as evidence, as evidence, by stating the witness F’s partial statement (the part on which other person’s statement is not the defendant, shall not be admissible) in the summary of evidence.

On the other hand, the court below held that the jury was a participatory trial, and the jury must make a judgment on the offense by the evidence admitted as admissible, and the evidence that has not been admitted as admissible shall not be considered at all. Article 44 of the Act on Citizen Participation in Criminal Trials provides that "A juror or alternate juror shall not participate in the trial on admissibility of evidence" of the court, unlike a judge who is a legal expert, shall not completely exclude the influence of evidence which has not been admitted as admissible even if he/she is involved in the trial on admissibility of evidence. Considering the above circumstances, it seems that the "F's legal statement of the witness of the court below with the contents of the jury's verdict" that may have a substantial influence on the jury's verdict is illegal. However, the proceedings are ultimately considered as admissible by the court below, and since the defendant and the defense counsel did not raise any objection, it cannot be deemed that the defendant's right to a participatory trial has been infringed to the extent that it can be invalidated in its entirety.

2) The part concerning prosecutorial investigators CI's statement among the second suspect interrogation protocol against the defendant prepared by the prosecutor

On August 30, 2017, the prosecutor conducted the first interrogation of the defendant, and conducted the second interrogation of the defendant on September 4, 2017, and conducted the second interrogation of the defendant on September 4, 201. In the second interrogation of the defendant, the prosecutor asked the defendant whether the defendant recognized the crime of this case by dividing the conversation with the prosecutor's investigation officer in the time to rest after the first interrogation of the suspect. The defendant denied the fact that the defendant did not speak, and the prosecutor asked the same question at the seat of CI of the prosecutor's office who participated in the second interrogation of the suspect.

[Statement by Prosecution Investigators concerning Defendant’s Speech and Action]

A person shall be appointed.

A protocol in which a full text statement or a full text statement is made shall, in principle, be inadmissible in accordance with Article 310-2 of the Criminal Procedure Act: Provided, That when a statement made by a person other than the defendant at a preparatory hearing or during a public trial contains the contents of the defendant's statement, it shall be admitted as evidence only when such statement is made under particularly reliable circumstances pursuant to Article 316 (1) of the Criminal Procedure Act. The protocol in which a full text statement is made shall fall under cases where its admissibility is recognized in accordance with Articles 312 through 314 of the Criminal Procedure Act. Furthermore, it shall be exceptionally admitted as evidence when it satisfies the above conditions under Article 316 (1) of the Criminal Procedure Act (see, e.g., Supreme Court Decision 201Do10926, Apr. 12, 2012

However, the following circumstances acknowledged by the record, i.e., the evidence list submitted by the prosecutor, i.e., (1) it is difficult for the prosecutor to view that the second statement of the suspect interrogation protocol was submitted as evidence by the defendant; (2) it cannot be deemed that the defendant consented to the above part of the statement in the suspect interrogation protocol on the ground that the defendant acknowledged the authenticity and arbitability of the suspect interrogation protocol; (3) it is difficult to see that the part of the statement in the suspect interrogation protocol was made in accordance with due process and method; and (3) even if it is assumed that the part of the statement in the suspect interrogation protocol was made in accordance with due process and method, or that the statement was made in accordance with the witness's appearance in the court. Even if it is assumed that the witness's second statement in the F testimony was made in the same manner as the witness's testimony did not meet the investigation method for the suspect; and (4) it is also difficult for the prosecutor to expect the defendant to receive various convenience in the suspect interrogation protocol as well as the statement made in the prosecutor's protocol.

3) In addition to the Defendant’s speech and behavior appearing in the remaining evidence submitted by the public prosecutor, according to each protocol of interrogation of the suspect against the Defendant prepared by the public prosecutor, the Defendant stated that “the Defendant would be able to report the victim’s divorce to the part of the Mauritius when he is examined by the public prosecutor,” and that “the Defendant would not simply deny the prosecutor’s question whether the Defendant would make a sentence upon his highest choice,” and it is merely an indirect fact to prove the facts charged, because it is difficult to view it as the Defendant’s statement to make a confession of the crime of this case, it is nothing more than an indirect fact to prove the facts charged, since it is difficult to view it as the Defendant’s statement to make a confession of the crime of this case, and thus, it is difficult to examine the value

(d) The credibility of E statements.

1) In the instant case where there is no direct evidence to presume that the Defendant murdered by the victim, if Party E demanded by the Defendant around the date of the instant crime took the form of Mabom similar to that of the victim’s dead body, it would be an indirect evidence of the Defendant’s robbery.

2) At any time when the defendant was living together with the defendant at the court below and the court of the trial, E stated to the effect that, at any time, at any time, the defendant was moving to the same building as a dead-type warehouse, was in the bridger as the defendant, leading him in the bridger, leading him in the bridger, leading him into the bridger, leading him to the bridger as the defendant, moving to a motor vehicle, and then he was in motion with the defendant at a place where the cement floor was located, and then he was in motion on the boomr, and how the defendant was in motion. However, in light of the following circumstances recognized by the records of this case including the evidence duly adopted and examined by the court below and the court below before the remand, it is difficult to view that the above statement is reliable as evidence sufficient to recognize that the defendant died and abandoned the victim's body.

(1) The question point of the initial statement in the E investigation

E On July 20, 2017, upon receiving the first investigation at the Suwon Police Station’s statement recording room, the police officer stated to the effect that “I do not memory what I would see? I would see what I would be ‘I would like to see that I would like to see that I would like to leave the body of the victim? I would not help the police officer abandon the body of the victim? I would like to see that I would like to see that I would like to see that I would like to see the fact that I would like to see the fact that I would like to see the fact that I would like to see the fact that I would like to see the fact 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 I would like to see that I would like to see that I would like to see the fact 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 I would like to see that I would like to I would like to see.I would like.

Considering that the perception or attitude of an investigative agency, which expects E to have heard the instant case by living together with the Defendant at the time before and after the commission of the crime, is likely to have affected the E’s statement, and circumstances where E does not appear as a suspect, it is doubtful whether the above change of E’s statement was not attributable to self-defense or the police officer’s cancer to escape from the co-offender relationship. Of course, in general, insofar as the procedural illegality or threat of the investigation process, threat of the investigation agency, and the interview, etc. are not clearly revealed, the credibility of the statement can not be immediately rejected. However, as seen below, E’s statement has limited value of evidence and has limited value of evidence, it can be granted credibility only if the above doubt should be resolved in that it is indirect evidence for the crime that is the robbery of this case. However, the evidence submitted by the prosecutor alone is insufficient to completely resolve the aforementioned questions.

In other words, E has undergone an investigation from 10:48 on the same day to 18:52 on the same day. Although it appears that time to rest, etc. was provided in light of the amount or content of the protocol, there is no way to verify whether there was no record of the record, and whether there was a conversation that is not entered in the protocol, etc., within 8 hours since it did not exist, and there is no way to verify whether there was a video product, etc.; more concrete, it is impossible to confirm how E changed its statement through any process after a certain period of time after E stated to the effect that it does not have any initial ‘not’, and how related photograph materials, etc. were presented, and accordingly, it cannot be evaluated as having been open-type questions excluded from the protocol despite the presentation of the aforementioned photographs.

Meanwhile, after remanding, E testified to the effect that “F, a police officer, who was present at the trial after the summons of the witness and was served as a witness, should be asked about “the person who is a police officer who investigated him/her,” and that F should make a true statement, such as “the person who is a witness of the trial,” and this is also confirmed in the statement of BH, a police officer, who is a witness of the trial after remand, that he/she called “F to talk about E as he/she talks about the fact that he/she talks about the fact that he/she talks about the match.” This conversation cannot be concluded to be inappropriate. However, the Supreme Court ruled that E’s statement in the remand judgment is necessary to be more strict assessment, considering the circumstances that police officers were aware of the contents of the judgment (the statement of the witness of the trial court BH) and that it appears that the above conversation between E and police officers conducted before the examination of the witness of the trial after remanding the case cannot be seen to have been easily made.

② On July 25, 2017, Epicing the possibility of distortion of, and limited evidence of, Epicing the Epic has been inspected on the face of the law, and thereafter the memory has been restored, and the background leading up to carrying Mabru in the investigation agency or the court of first instance after remanding the case has been stated more specifically than before ‘the specific shape of Mabru has been cut off with the colorless’. As such, although there was a fruit to make the contents of Mabru a strong and solid and present its impression, the accuracy of the 's detention' has not been raised or secured. Accordingly, there has been controversy over whether to grant admissibility of Mabru in the outcome of the investigation or in the case of subsequent testimony, and at least in the case of evaluation of credibility, the above characteristics of the Mabru must be considered.

In this regard, in light of a series of progress in which E’s statement about Mabomy after the legal surface inspection is embodied, it seems that E can also be said that the defendant's treatment of Mabomy, other than the information that was presented by the investigative agency, such as the color of Mabomy, vehicle color, etc., and how he/she handled the Mabomy, and how he/she was in his/her surrounding situation during the time when he/she was waiting for the handling of Mabomy. However, E stated that matters concerning e-mail are specific memory after the lapse of time after the legal surface and that it is not specific memory until the trial after remanding the case.

These circumstances suggest that, even if the E’s statement in the investigation agency and the court is not different from his memory, it cannot be ruled out the possibility of forming a false memory and accordingly testimony. In other words, the fact that E had already been memory before the examination of the law prior to the examination and the fact that E had been aware of it through a photograph provided by the investigation agency, etc. separate from his memory, and the possibility that the entire part of the statement after the examination of the law cannot be ruled out to be reconvened in the form of “self-identification,” the probative value of the statement newly obtained after the examination of the law is difficult to be assessed to the same extent as that of the previous general statement.

그리고 E의 진술은 마대자루에서 물컹한 느낌이 들었다는 것뿐이고 마대자루의 내용물에 관한 구체적인 진술은 없으며, 납득할 만한 특별한 사정이 없는데도 마대자루를 자동차 트렁크에서 내린 후 피고인이 이를 어떻게 처리했는지에 관한 내용을 포함하고 있지 않아 그 증거가치가 제한적인 한계도 분명히 있다.

(3) Review of additional credibility through verification, etc.

대법원 환송판결에서는 피고인이 굳이 범행이 탄로 날 위험을 무릅쓰고 E의 도움을 받아야만 했을까 하는 의문이 제기되었다. 또 E이 실제로 사체가 담긴 마대자루를 옮겼다면 사체가 담긴 마대자루의 형상과 재질에 비추어 E이 물컹한 느낌만 든 것이 맞을까 하는 의문도 든다. 이러한 의문은 '사체와 같은 형상을 포장한 마대자루'를 성인 남성이 혼자서 상차(上車)할 수 있는지 여부나 신장 165㎝의 사체를 마대자루로 포장하는 경우 그 형상이나 무게 또는 이를 들어 올리는 과정에서 포장을 통해 느껴지는 촉감이나 특히 비닐로 포장된 부분을 통해 내용물을 인식할 수밖에 없는지 여부 등에 대하여 상하차 상황을 가능한 한 비슷하게 재연한 후 직접 들어보는 등의 실험을 통하지 않고서는 쉽게 해소되기 어려울 것이다. 이에 따라 환송 후 당심은 검사에게 재연실험을 통한 검증을 권유하였음에도 결국 그러한 검증은 이루어지지 않았고, 환송 후 당심 증인인 경찰관 BH의 진술에 의하면 수사과정에서도 그러한 재연실험은 없었던 것으로 보인다. 검사가 환송 후 당심에서 검증에 대체하여 제출한 'S' 프로그램의 방송 내용 중 차량에 마대자루를 싣는 실험에 관한 부분은 '피고인이 굳이 범행이 탄로 날 위험을 무릅쓰고 E 등 다른 사람의 도움을 받아야만 했을까'라는 의문을 해소하기 위한 것이기는 하나, 비슷한 무게를 가진 물건을 마대자루로 포장한 채 성인 남성이 혼자서 상차할 수 있는지 여부에 중점을 두고 실험한 것으로, 인체 또는 인체와 비슷한 재질과 형태로 구성된 구조훈련용 더미 (dummy) 등을 사용하지는 않는 등 실험 과정이나 조건 설정에 있어 E이 진술한 상차 현장을 충실히 재연하지는 못한 것으로 보인다. 따라서 해당 방송 영상만으로는 '(피해자의 사체가 포장된 것과 비슷한 형태의) 마대자루를 피고인과 함께 차에 싣고 내린 사실이 있다'는 E의 진술에 신빙성이 추가되기 어렵다.

(4) Binding force of the judgment remanded.

From the binding force of the judgment of remanding, even after closely examining the newly submitted evidence by the prosecutor after remanding along with the existing evidence, it does not seem that there is a change in the relationship that forms the basis of the binding judgment of remanding through the submission of these evidence (it is highly probable that E would have made a false statement in the judgment of remanding, but the credibility of E’s statement does not reach the binding force of the judgment of remanding. However, as seen earlier, the Prosecutor’s assertion is not acceptable, since it specifically states various questions about the credibility of E’s statement in the judgment of remanding as seen earlier.

(e) The fact that the defendant has withdrawn the deposit by inputting the password with a passbook of a victim;

1) Recognized facts

On May 5, 2002, 22:18, the Defendant withdrawn KRW 29.60,000 from the victim’s ordinary deposit account at the point of thought-gu Busan Metropolitan City (hereinafter referred to as “the first withdrawal”).

According to bank CCTV images at the time of the first withdrawal (hereinafter referred to as "the first withdrawal video"), the defendant tried to withdraw money with cash payment, but the defendant went out of the bank because the password was forged twice, again, confirmed that the password was divided into a cash payment machine, and then withdrawn the deposit in a counter.

2) The defendant's legal action as to the primary withdrawal

The Defendant denied that he did not appear in the first withdrawn video from the police, but he did not appear in the above bank on the corresponding date. The Defendant stated that he was the victim's identity number three times in combination with the victim's resident registration number and the cell phone number recorded in the victim's identification card and the victim's mobile phone number recorded in the victim's identification card and the victim's mobile phone number recorded in the victim's identification card and the victim's mobile phone number recorded in the victim's identification card, and that he again stated the victim's identification number as the victim's identity number and the victim's identity was not known as the victim's identity again.

3) Specific determination

A) The prosecutor asserts that, in light of the circumstances in which the defendant entered the first withdrawal process, in particular, the password in the first withdrawal, and after having returned to outside the bank, the defendant can sufficiently see the specific facts discovered with a password by assaulting or threatening a victim on a vehicle located on the underground parking lot of a bank at the time, without placing the victim.

However, the Defendant confirmed that the password at the time was cut off from the door to the door and 10 seconds later, and repeated two times. Within the short time, the Defendant confirmed that the password was cut off to the underground parking lot and confirmed that there was no person around it; ②, the Defendant removed a tape to open a biter and prevent the victim from suffering; ④ the Defendant knew of a new password from the victim; ④ the victim was prevented from demanding rescue; ④ the biter is closed; and (b) it is doubtful whether it is possible to return to the bank payment. Even if possible, considering that there was no circumstance to deem that the Defendant had driven at a particularly time at the time, even if possible, it is difficult to accept the Prosecutor’s assertion that the Defendant, who became aware of that the password was two or more times, trusted the password referred to the victim’s third, and returned to the bank immediately. Such assertion by the prosecutor is difficult to accept, taking into account the above circumstances.

B) However, in light of the above facts acknowledged and the following circumstances revealed by the evidence submitted by the prosecutor as to the details of the first withdrawal, there is sufficient possibility that the Defendant, as alleged by the prosecutor, could directly find out the identity of the deposit passbook from the victim by assaulting or threatening the victim as alleged by the prosecutor, and such indirect facts alone require a strong doubt that the Defendant committed a crime like the facts charged in this case.

(1) In light of the degree of corruption of the victim’s dead body (the beginning of a escape and the decline of a finger-saw), the victim seems to have died from about 8 to 10 days from the life of the person. 5) From this perspective, the victim seems to have been killed at the time of the death of the victim on May 21, 2002, which is confirmed to have last call with the brus.

② The victim’s fingerprints expressed that the victim was faced with ordinary money, and that the victim had a passbook or seal in the door that had been kept in his/her ordinary room because of fear of theft. On May 21, 2002, the victim appears to have been holding a room to put him/her in his/her ordinary passbook or seal even at the time of leaving his/her office on May 21, 2002. However, the victim was killed in several military forces and was abandoned in the Maga, and the Defendant attempted to withdraw the first time using the passbook and password of the victim.

③ In light of the two cases where there was a relatively short interval of time, it is more likely that two different persons commit all separate crimes, namely, “the homicide” and “the withdrawal of deposits using a separate passbook,” rather than the possibility that one person committed a series of crimes against the victim, thereby infringing the life and property of the victim.

④ In light of the victim’s resident registration number, cell phone number, and the victim’s life-long day, etc., which can be confirmed on the record, it is reasonable to view that the circumstance where the Defendant discovered the password which the Defendant argued from the time of interrogation of the third time of the suspect in the prosecution is false, and accordingly, it is sufficient to find the Defendant directly aware of the password from the victim. In light of such circumstances, it is reasonable to see that there is no possibility that the victim could have known the password of the passbook without any relation to the victim, and that there is no possibility that the victim, who carried the passbook directly due to the concern about theft, carried the victim’s body, carried the password in the process of identifying the password from the victim. In addition, it may be inferred that the Defendant directly identified the password of the passbook by assault, intimidation, or adviser of the victim who resisted.

Whether the defendant's appeal is reasonable or not can be an important factor in determining whether the defendant can function as impeachment for evidence consistent with the facts charged, that is, it can be an important factor in determining whether the defendant can function effectively as impeachment. However, it is also possible to see that the defendant's appeal against the defendant's change of "whether the man appearing in the first withdrawn video is the defendant or how the defendant becomes aware of the identity of the victim's account." In particular, it is also possible to see that the defendant's appeal against the defendant's change of the defendant's appeal against the defendant's statement that the defendant's appeal against the defendant's change of the defendant's appeal was made at least 8:0 p.m. on May 21, 2002 because the investigative agency did not know that the last action of the victim was confirmed by the time of May 23:20 of 202.

C) However, evidence that facts constituting a crime exist under the current criminal procedure system must be presented by a prosecutor. As such, even if the Defendant’s assertion is unreasonable and false as long as the Defendant’s assertion is not forced to make a statement unfavorable to himself/herself, it cannot be determined disadvantageous to the Defendant for such reason. The proof of facts constituting a crime ought to have a judge have high probability to recognize it to the extent that there is no reasonable doubt (see, e.g., Supreme Court Decision 2004Do7232, Dec. 22, 2006).

From this point of view, insofar as the victim's actual use of a usual book, the possibility that the victim entered a proviso to easily see his/her password or password in the book, and the possibility that multiple passwords were erroneously entered in the first early withdrawal in the book, or mistakenly grasping the number due to a pen, etc., it may be deemed that there is a possibility that the defendant, even though he/she knew of his/her password directly in the book, could not accurately memory the developments that he/she became aware of the password during the 15-year period of 15-year period, and such possibility is not ruled out through objective facts or he/shesive arguments recognized by evidence, it goes beyond a simple logical reasoning or probability, and it is sufficient to recognize that the defendant committed a robbery, such as this case's charge, and there is sufficient reason to recognize that the defendant had a high probability to prove that he/she had a high degree of probability, i.e., a crime of murdering the same as this case's charge. Ultimately, there is insufficient reason to prove the indirect facts and the indirect facts of this case.

On the other hand, from the binding point of the judgment of remanding the case, since the indirect facts that the defendant withdrawn the deposit with the victim's passbook and terminated the victim's installment savings are clearly judged to be very insufficient indirect evidence as to the robbery like the facts charged in this case itself, it should be presented new evidence to the extent that it can be evaluated that the relationship of evidence, which served as the basis of continuous judgment, has changed in order to deny such binding force, or that the circumstances premised on the defendant's change at least the defendant's change of address, are different from the objective facts. "whether the victim used the pocket book at the time," "whether the victim has established the password at the time," "whether there was a possibility that the victim would infer the password at the time of the first withdrawal through other information about the victim," and "at the time of the first withdrawal, whether there was any possibility that the defendant could not apply the above indirect facts, such as the balance of the court's account through the bank's lawsuit, etc., and it did not present any objective evidence to prove that the defendant's remaining remaining after the judgment was remanded.

F. Whether the facts charged based on indirect facts acknowledged as remaining evidence are acknowledged

1) The defendant's termination of the victim's installment savings

After the first withdrawal, the Defendant asked AU, a female employee, to leave the victim's role to terminate the installment savings. On June 12, 2002, the AU entered a bank located in Busan (20 days after the first withdrawal of the Defendant), and cancelled and withdrawn the installment savings by changing the password using the victim's installment savings passbook, identification card, etc. at the bank counter (hereinafter referred to as "second withdrawal"). At the time, the Defendant recognized the fact that the Defendant was in the vicinity of the site, and the bank police stated that the Defendant was present at the bank inside the bank at the time of the second withdrawal.

If a person who lost the head of the Tong and identification card and becomes aware of the fact that his deposit was withdrawn by the head of the Tong and the group, it is usual to report the loss to the bank. Thus, the defendant's cancellation of the victim's installment savings at the risk of loss after a considerable period of time from the first withdrawal refers to the fact that the victim was unable to report the loss or loss, and that the victim was aware of the death of the victim.

It is also true that it is possible for the prosecutor to conduct the following questions. In other words, if the defendant who killed the victim and abandoned the victim's body, it is natural to avoid arrest by avoiding additional exposure to the victim's behavior and blocking his connection with the victim to the maximum extent possible. However, if the defendant is arrested in order to additionally withdraw KRW 5 million in cash, it is doubtful whether the defendant requested the victim to face with the victim and attempted to terminate the installment savings at the risk of causing danger that the crime of this case may be punished as murder or robbery. Unless the victim's organic body is found, it is thought that there is no problem, and the possibility that the second withdrawal was attempted entirely cannot be ruled out. However, if the identity of the victim or the victim was failed in the second withdrawal or in the process, and arrest of the victim or the victim is revealed, if the degree of criminal punishment on him is very serious, it needs to be determined that such additional crime will be sufficient.

Moreover, immediately before the second withdrawal date ( June 12, 2002), the following [the progress of the investigation at the time of the second withdrawal]

In addition, according to the relationship between the defendant and the victim who is inferred by the investigative agency and the defendant's moving line, etc., the defendant could have sufficiently known that the investigation was conducted by the investigative agency around that time. Thus, the above questions are raised.

[The progress of investigation at the time of the second withdrawal]

(1) The detection of the dead body of a victim on May 31, 2002

On June 1, 2002 and June 1, 2002, the victim's identity confirmation and hearing of the statement from the victim's words to the victim's possession of passbook ③ Confirmation of the first withdrawal on June 5, 2002 and confirmation of "(the second withdrawal) the fact that the savings deposits are not paid out of installment savings (No.4)" (No. 2002 and June 10, 2002). No. 77 request for the suspension of payment to the deposit passbooks held by the victim for the first suspect after June 10, 202.

In addition, the defendant's appeal that "the domestic bank withdrawals the deposit, but it was suspected that the robbery was caused by the robbery, and there was no other indirect evidence that the defendant's appeal that "if an installment savings is terminated, it would be returned to the amount that was previously withdrawn, it would also be returned to the amount that was previously withdrawn," is not consistent with objective facts.

2) As a result of the victim’s autopsy on the victim’s blood alcohol concentration at 0.074%, the investigation agency conducted the investigation on the premise that the victim died after drinking alcohol to a certain extent. However, the summary of the investigation report that heard the statement made by the appraiser submitted to the court after remanding the case may lead to the ethyl alcohol generation within the body due to her throth corruption, and the ethyl alcohol content so produced is added to the ethyl alcohol content remaining in the body due to alcohol thereby being measured, and the ethyl alcohol content is also generated together with the ethyl alcohol content if the ethyl alcohol is generated in the body due to decomposition. Thus, the investigation agency conducted the investigation on the premise that the victim died after drinking alcohol to a certain extent. However, the investigation report that heard the statement made by the appraiser submitted to the court after remanding the case may be excluded from the ethyl alcohol concentration due to her ethyl alcohol content being measured separately from the ethyl alcohol content before being introduced.

Ultimately, indirect facts that can be inferred by the above investigation report can be inferred that some of the blood alcohol concentration measured at the victim's body were generated by corruption, and accordingly, the blood alcohol concentration at the time of the victim's death can be lower than 0.074%. However, since the measured ethyl alcohol content cannot be accurately known, it cannot be seen that whether the victim was drinking at the time of the victim's death, and if the victim dices alcohol, it cannot be seen that the victim was drinking to a certain extent.”

Therefore, the argument of the defendant and the defense counsel that "the defendant is highly likely to be dismissed because the victim died while drinking alcohol according to the above investigation report can be evaluated to have reduced the probability." However, it is difficult to evaluate that the possibility that the defendant murdered the victim or was aware of the password without placing the victim on the troke, as alleged by the prosecutor.

3) According to the Defendant’s economic situation at the time of the instant case and evidence submitted by the Prosecutor to commit robbery around 2003, the Defendant did not have a certain occupation at the time of the instant case, and did not have any source of revenue even after having been liable for considerable debts. In the instant case, the Defendant withdrawn the victim’s deposit, and sought money for the termination of the victim’s installment savings at risk and risk, and sought money, and began to arrange commercial sex acts by using runaway juveniles at a similar time. In particular, the Defendant committed the instant crime under the following items, a deadly weapon, which was a deadly weapon prepared by the Defendant for robbery against the female, or prepared against the young female victims in advance at around 2003, and tried to force the victim’s entrance and hand-over money by combining the victim’s hand-over with the tape, and attempted to rape the victim. According to such indirect facts, according to such indirect facts, the Defendant could not have any income available at the time and commit the instant crime.

However, there is no circumstance to deem that the Defendant had been in arrears with loans at the time or had been urged to repay loans at a considerable level from private financing, etc., and in light of the following: (a) the Defendant was a person who had no criminal history prior to the instant case; (b) the commission of robbery committed by the Defendant around 2003 and the crime of this case; (c) the method of coloring the object of the instant crime; (d) the method of making use of hearing tapes; and (e) the specific form of the instant crime, etc., it is still insufficient to give conviction that the Defendant committed the instant crime by such indirect facts.

4) With respect to the possibility of committing a crime by a third party by a third party, DH, who was under investigation by an investigative agency prior to the information on the second withdrawn images, was present as a witness at the trial after remanding the case, and testified on the victim’s criminal records before and after his/her death. The content of DH was limited to the extent to confirm once again the previous statement of the said witness for the same purpose as that of the victim’s previous statement, which was the same as that of the victim’s previous statement, after being investigated as a suspect by an investigative agency. Since May 21, 2002, it is questionable whether the victim made a statement contrary to objective data, such as communication confirmation data, and even if considering that DH made a statement after a considerable period of time, it is difficult to view that DH still observe the response as to the reply that the victim did not murder at the time of making a false detection detection investigation by an investigative agency, and that D and the Defendant did not have known prior to his/her death.

On the other hand, there was no indirect fact that the defendant deemed the criminal as the criminal.

In addition, the gist of the statement of witness concerning "a person who sent a mail containing the truth of the crime of this case by a third party other than the defendant mentioned in the judgment of the court of remand" is that "a person who comes out of the first withdrawn video is aware of himself/herself," and the defendant has already recognized that the person who comes out of the above video was himself/herself from the time when the third protocol of suspect examination was prepared by the prosecution, and thus, on a different premise, the first witness's information itself does not affect the judgment of the crime of obsting and community of the facts charged of this case.

5) The ice discovered in the Defendant’s vehicle is found to have been found to have had a red ice in the lower seat of the vehicle operated at the time of the instant case, and there is a possibility that the said ice was generated at the time when the Defendant operated the vehicle. However, the said ice was likely to have been generated when the Defendant was in operation of the vehicle. However, the said ice was merely an indirect fact that it is very insufficient to recognize the Defendant’s criminal act, insofar as it is difficult to view that the ice was in the position of the ice, and it is difficult to view that there is no value of evidence to add the probative value of other indirect evidence, such as the E statement, even if it is difficult to view that the ice was in the ridge between the vehicle buyer and the vehicle buyer, as it is difficult to see that the ice was in the position of ice, and there is no value to add the probative value of other indirect evidence, such as the E statement.

6) On May 2016, the Defendant searched on the Internet that he suspected of committing the crime of murder, and the case was introduced in the ‘S', and it is suspected that the Defendant reported his broadcast, and that the phrase “CU” was written in the Defendant’s speech and behavior, and it was discovered that the Defendant’s speech and behavior does not mean the victim of the instant case, and it was not actively denied the question whether the Defendant’s ‘cU’s speech and behavior at the prosecutor’s prosecutor’s office would be ‘whether or not the sentence would be 'if the Defendant makes a highest choice,’ and it is difficult to view that the Defendant was guilty of committing the instant offense, even if he tried to confirm ‘the prosecution' against the investigative agency, it is difficult to find out that there was an indirect fact that the Defendant did not have any doubt about ‘the Defendant’s speech and behavior at the time of interrogation,’ and that he would not have any doubt about ‘the fact that the Defendant appears to have taken advantage of the circumstances of ‘the Defendant’,’ other than ‘the victim’ of the instant case’.

7) Other circumstances, 'N’, immediately after June 202, 2002, who was living together with the Defendant, was sexually violent and threatened the Defendant by putting in the vehicle a strike, threatening him. The Defendant stated that he was imprisoning himself at the time of his escape, and according to the Defendant’s tendency and behavior analysis report at the investigative agency, it is difficult to view that the Defendant has the probative value as evidence of guilt as to the facts charged in a criminal trial, regardless of the fact that it can be materials about the Defendant’s usual character and behavior.

G. Comprehensive determination

1) In a criminal trial, the prosecutor bears the burden of proving the facts charged, and in a case where the prosecutor’s proof does not reach the degree that the judge would not have any reasonable doubt, even if there are circumstances, such as the defendant’s assertion or defense contradictory or uncomfortable suspicion of guilt, it should be determined as the benefit of the defendant even if there are circumstances such as the defendant’s assertion or defense. The recognition of guilt by indirect facts also ought to be determined as the benefit of the defendant. In addition, if there are indirect facts such as the motive of the crime, the selection of the means of the crime, the process leading to the crime, the attitude of the defendant before and after the crime, etc., and if there is a direct evidence, it should be limited to a case where the defendant’s direct evidence exists (see Supreme Court Decision 2017Do1549, May 30, 2017).

2) In light of the aforementioned legal principles, the instant case is re-writtenly denied that there was no crime of robbery, and the Defendant did not have any direct evidence.

3) Among the evidence based on the judgment of conviction, the evidence, such as the investigator’s testimony and statement by the prosecutor’s investigator, and the statement by the prosecutor’s investigator, etc., whose contents are “a confession or a person made by the investigative agency” among the evidence based on the judgment of conviction, shall not be admissible because it is difficult to view that the defendant’s statement, which constitutes the contents thereof, was made in accordance with legitimate investigation procedures or in particular reliable situations.

4) “The primary indirect evidence that the Defendant abandoned the victim’s body” (in the form similar to the packaging of the victim’s body) is a key indirect evidence to conceal the victim’s body, there is doubt that the Defendant’s statement in investigation agency and court is not resolved to the credibility, such as the probability that the initial process of the statement is unclear, etc., and there is a limit to the value of evidence because the statement is made only for part of the indirect facts, and there is a limit to the value of evidence being limited. Since (c) no evidence is newly submitted to the extent that the credibility of the statement is enhanced after the judgment of remand, it cannot be admitted as evidence to acknowledge the Defendant of the instant facts charged.

5) Examining the indirect facts on the details of the first withdrawal, there are circumstances to suspect the possibility that the Defendant committed the robbery of this case, and the accused’s assertion that is not reasonable is made strong doubt. However, there is also the possibility that the Defendant could have withdrawn the first withdrawal without relation to the victim’s death, and as long as it cannot be ruled out to the extent that there is no reasonable doubt through objective evidence and argument, it does not constitute a high probability to deem that the Defendant committed the crime of this case because the first withdrawal itself is extremely superior to the degree that it is sufficient to deem that the Defendant committed the crime of this case. Considering the binding force of the judgment of remanding indirect facts in this part, there is insufficient evidence to further deem that there is no sufficient evidence.

6) In addition, even if the prosecutor’s remaining indirect facts, including the evidence newly submitted at the trial after remanding, are comprehensively taken into account the following indirect facts, i.e., the process of the second withdrawal, the victim’s blood alcohol level, the economic situation at the time of the defendant, the records of the same crime, the ice discovered in the defendant’s vehicle, and other suspected behavior or remarks, it is difficult to view that there exists indirect evidence with the probative value at the point of risk in the event of the existence of direct evidence in the instant case. It is difficult to view that there exists the probative value of guilt that does not exist independent evidence even when comprehensively considering both the aforementioned indirect facts and such indirect

7) Ultimately, in the instant case, it is difficult to view that, in a case where the presumption of innocence against the Defendant exists as direct evidence, the penalty was reversed by indirect evidence, and therefore, there is no proof of facts constituting the instant facts charged, and the Defendant and the defense counsel pointing this out has merit.

6. Conclusion

Thus, the defendant's appeal is justified. Thus, without examining the defendant's and prosecutor's argument of unfair sentencing, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the defendant's appeal is

[Grounds for multi-use Judgment]

The summary of the facts charged in this case is as stated in Paragraph (1) above. This constitutes a case where there is no proof of facts constituting a crime as seen in Paragraph (5) above, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of this decision is publicly announced pursuant to

Judges

The presiding judge, the senior judge;

Judge Sok-hee

Judges Kim Young-chul

Note tin

1) Each investigation report (Evidence Nos. 191, 197, and 217) stating that F of the investigating police officer stated that the Defendant led to the confession of the facts charged in the instant case or anticipated to be guilty of the Defendant, including the part on which the Defendant’s statement was written. Each investigation report was not based on evidence of conviction in the judgment of the court below, but is not based on evidence of conviction. However, the part on the Defendant’s statement in the witness F of the court below, which is a direct evidence, appears to have been omitted due to the use of evidence of conviction.

2) In a case where a person, other than the defendant, prepares a written statement in the course of investigation, but the investigative agency failed to record the investigation process, thereby violating the procedures prescribed in Article 244-4(3) and (1) of the Criminal Procedure Act, barring any special circumstance, the written statement cannot be deemed to have been prepared in the course of investigation according to the “legal procedures and methods,” and thus, the admissibility of evidence cannot be recognized (see, e.g., Supreme Court Decision 2013Do3790, Apr. 23,

3) Of course, in a case where credibility of the statement of E that the defendant moved to Marshall be acknowledged, it is stated to the effect that E did not specify the date and did not fully recognize the content of Marshall. 1, 2002. As such, considering ① the fact that E appears to have resided at the defendant’s office until early June 2002, which was the final call of the victim, after May 23:20, 2002, the date on which the victim’s body was discovered, moved to Mar. 1, 2002; ② the fact that the body of the victim was contained in Mar. 1, 2002, the fact that the defendant moved to Mar. 20, 200, and the fact that the body of the victim was included in the Mar. 1, 202, the fact that the defendant was the party who withdrawn the victim’s deposit, the victim was found to have been included in Mar. 1, 2002, and that other indirect evidence could not be considered.

4) AS involved in the second withdrawal was investigated as a criminal suspect.

5) AB of the law, which prepared a written request for the examination of the body of a victim, presumed the time of the victim’s death as a new wall on May 22, 2002. However, this appears to have been prepared by referring to the victim’s behavior revealed in the investigation process. Among the water, the time of death is not inferred through scientific measurement, such as the temperature of the body, etc. due to the characteristics of the perishable body, and the grounds for identifying the victim’s accurate time of death cannot be confirmed in the record.

6) Many bank accounts were used by the victim at the time. The passwords of the savings account subject to the primary withdrawal and the savings account subject to the secondary withdrawal are different, and the passwords of the remaining accounts were not revealed in the record. However, if a passwords were separately set for each account, the victim cannot ignore the possibility that he/she himself/herself placed in the book.

7) At the time, the police did not take such measures as requesting the suspension of payment with respect to the savings passbook subject to the second withdrawals, and did not seem to have established an organic cooperation system to arrest those who attempt to terminate the installment savings separately. If the police is equipped with such a cooperation system, it would have been possible to arrest the Defendant and the Defendant from the opposite station, etc. (AU and AS). In such a case, it would have been possible to secure additional evidence that is different from the present based on the statement of the deceased AU, the birth of the Defendant’s cell phone, the telephone call details used by the Defendant, and the tracking of the base station.

8) Even if the investigative agency was convicted of the Defendant as the offender of the robbery of this case, it was confirmed that the police statement of the Defendant Cho Q Q, which was previously classified as the Defendant and ASEAN, was very important for the Defendant’s sole criminal conduct or joint criminal conduct. However, no investigation was conducted after the transfer by the prosecutor, and it should be followed by the order of the first instance court after the remand of the case. After the transfer by the prosecutor, it was only confirmed that Q’s statement was erroneous, but there was no memory that Q’s statement was not sent to the prosecutor, and that it was verbally reported to the prosecutor.”

심급 사건

-부산지방법원 2018.1.9.선고 2017고합452

-부산고등법원 2018.7.11.선고 2018노51

-대법원 2019.1.10.선고 2018도12374

부산고등법원 2019.7.11.선고 2019노28

-대법원 2019.10.18.선고 2019도10489

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