[1] The case where the facts charged are specified

[2] Matters to be considered when determining the credibility of a statement made by a child victimized by sexual harassment in an investigative agency as evidence, and whether the same applies to determining whether the mental or social age of the child is credibility due to intellectual disorder (affirmative)

[1] Article 254(4) of the Criminal Procedure Act / [2] Article 6(2)1 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 308 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2014Do2918, 2014Do54 Decided July 24, 2014 / [1] Supreme Court Decision 2002Do2939 Decided October 11, 2002 (Gong2002Ha, 2778) / [2] Supreme Court Decision 2006Do2520 Decided July 10, 2008 (Gong2008Ha, 1191), Supreme Court Decision 2015Do7450 Decided September 10, 2015

Defendant

Defendant

Law Firm LLC (Law Firm LLC, Attorneys Go Nam-nam et al.)

Seoul High Court Decision 2015No2167 decided September 1, 2016

The appeal is dismissed.

The grounds of appeal are examined.

1. Judgment on the unspecified assertion of facts charged

Article 254(4) of the Criminal Procedure Act provides that the facts charged shall be specified by specifying the time, date, place, and method of a crime (Article 254(4)). The purport of the Act demanding the specification of the facts charged is to facilitate the exercise of the defendant’s right to defense. As such, it is sufficient that the facts charged are stated to the extent that the facts constituting the crime are distinguishable from other facts by integrating these elements. Even if the date, time, place, and method of a crime are not specified in the indictment, it does not go against the purport of the Act allowing the specification of the facts charged, and it is inevitable to generally indicate the facts charged in light of the nature of the crime charged, and if it does not interfere with the defendant’s exercise of his/her right to defense (see, e.g., Supreme Court Decisions 2002Do2939, Oct. 11, 2002; 2014Do2918, Jul. 24, 2014).

The date and time of the instant facts charged is relatively generally indicated as “the first day between June and August 2014”. However, according to the record, the victim is a disabled person of Grade II with intellectual disability who is difficult to memory or express the accurate date of the damaged. In light of the characteristics of sexual crimes, other than the victim’s statement, it seems that the prosecutor, as a public prosecutor, inevitably, has no choice to indicate the date and time of the offense due to the limitation of the victim’s ability to make statements, because it is difficult to set the date and time of offense at a certain point due to the lack of the victim’s ability to make statements. In addition, the instant facts charged may be distinguishable from other facts in light of the place of the offense, the form of the offense, etc., and thus, it cannot be deemed that the Defendant violated the Defendant’s right to defense. Examining these circumstances in light of the aforementioned legal principles, the lower court did not err by misapprehending the legal doctrine on

2. Determination on the credibility, etc. of a statement by a person with intellectual disability

A. When determining the credibility of a statement made by an investigative agency as evidence of an indecent act committed by a child, taking into account how much the child’s age is, how much the child’s age is, how much after the occurrence of the case, how much the child’s statements were made after the occurrence of the case, and how much the guardian or investigator initially hearded the facts of the child’s injury in the process of making a statement after the occurrence of the case, and how much the child’s statements were made, and how much the child’s statements were made after the occurrence of the case, and how much the child’s statements were made after the occurrence of the case. Whether there is room to bring about a change in the child memory by providing the child with information not facts, or inducing a specific answer through repetitive newspapers, etc., whether the above statement was not repeatedly made by the questioner at the time of the statement, and whether the child’s statements were affected by another investigation agency, 200 or more, including whether the child’s statements were recorded in 200 or more, and whether they were 200 or more.

B. The lower court determined that the victim’s statement was reliable on the following grounds, and found the Defendant guilty of the facts charged in the instant case that the Defendant attempted to commit an act of similarity with the victim, who is a intellectual disabled person, and attempted to commit an attempted act of similarity from June to August 2014.

(1) The victim, as a disabled person of Grade II with intellectual disability, who is 36 and 2.64 years old in intelligence index, has a limitation on recognition and language ability. However, in an investigative agency, he/she used limited words he/she knows in the investigative agency, and expressed his/her experience in addition to non-language actions, such as marking.

(2) From the investigative agency to the first instance court and the lower court court, the victim consistently stated to the effect that “the Defendant was unable to put his sexual organ into the victim’s resistance.” During the statement process, the victim made several statements to the effect that “the Defendant was unable to put his sexual organ into the victim’s resistance.” The victim engaged in sexual conduct, such as drinking the victim on the hand floor, etc.

(3) Although there is a disagreement between the victim’s response to an illegal question, etc., it appears that the victim was unable to understand the intent of questioning in light of the content and degree of intellectual disability suffered by the victim. The victim’s statement is consistent in the main part, and the degree of somewhat inconsistency is not sufficient to deny the credibility of the entire statement within the scope of acceptable consent.

(4) In light of the victim’s intellectual ability, it is very low that the victim made a statement or a non-language behavior by falsely tending the fact that the victim did not have any direct experience. Moreover, examining the details and the process of the statement, etc., it does not seem that the victim made a statement by inducing or suggesting the police officer or the non-indicted 1.

C. The allegation in the grounds of appeal purporting to the effect that such fact-finding and determination by the lower court is unfair, and is merely an error in the determination of evidence and probative value, such as victim’s statement, which belongs to the free judgment by the fact-finding court. In light of the aforementioned legal principles and duly admitted evidence, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the determination of credibility of intellectual disability statements, or by exceeding the bounds of the principle

3. Conclusion

The Defendant’s final appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)