The case rejecting the credibility of the statements made by the victims who correspond to the facts charged and reversing the judgment below that acquitted;

[1] Article 308 of the Criminal Procedure Act

Defendant 1 and two others

Prosecutor

Busan District Court Decision 2004No3130, 2005No22 decided Feb. 4, 2005

Of the acquittal portion of the lower judgment, the part as to Defendant 1 and 2’s violation of the Punishment of Violence, etc. Act (at night, joint intimidation) and violation of the Punishment of Violences, etc. Act (at night, joint violation), and Defendant 1’s public conflict are all reversed, and this part of the case is remanded to the Busan District Court Panel Division. The Prosecutor’s remaining appeal is dismissed.

1. The judgment on the violation of the Punishment of Violences, etc. Act (at night and joint intimidation) against Defendant 1 and 2's victim 1 and the violation of the Punishment of Violences, etc. Act (at night and joint damage)

A. Summary of the facts charged

Defendant 2 instructed Defendant 1 to take advantage of violence, and ordered Defendant 1 to take advantage of his instructions, if a promissory note, etc., after deducting a high rate of interest from a distributor and failing to receive the payment from time to time, Defendant 2 conspired with Defendant 1 and Defendant 2 to collect a claim by force through the mobilization of violence on the part of himself, in accordance with his instructions, following:

(1) On April 200, Defendant 1 and Defendant 2 jointly agreed, at the office of (trade name omitted) operation of the victim 1 located in Busan Jinjin-gu, Busan (hereinafter address omitted) around 10:00 on the last day of April 2003, Defendant 2 expressed the victim’s attitude that “I would like to have the victim 12 million won (name omitted of Nonparty 1) who was the main owner before this new woo-gu, and did not receive the bill discount, and I would like to accept the bill discount as per the Mamam without any order.” However, Defendant 1 would not respond to it, “I would like to have one of the office keys.” However, Defendant 1 would have expressed the victim’s attitude that I would have had any harm to the body of the victim.”

(2) On June 20, 20:40 of the same year, Defendant 1 instructed the non-indicted 1 to the effect that the non-indicted 1 would be mixed with the victim, and the non-indicted 1 who received the direction to the effect that the non-indicted 1 would be mixed with the victim. The non-indicted 2's cell phone located in the above office while the victim was found to have entered the above office, but the non-indicted 2's cell phone located in the location where the victim would not appear to have been able to have been able to write down (the name of the victim 1 omitted). The non-indicted 1 sent a threat to the victim (the name of the defendant 2 omitted) on the part of the non-indicted 2's body, and expressed his attitude that it would inflict any harm on the victim's body. The sum of the victim's 1 large market price of 420,000, 500, 300, 100, 100, 100, 1000.

B. The judgment of the court below

According to the reasoning of the judgment below, the court below held that it is difficult for the above defendants to have made a statement as evidence of the victim 1, the prosecutor's office and the court's statement, the police's statement as well as the police's statement as the non-indicted 4, and the victim 1's statement among these statements, it is difficult for the victim 1 to find any specific motive for committing the crime as stated in the facts charged. ② With regard to paragraph (a) of the above facts charged, the victim 1's statement in the court of first instance was made at the non-indicted 4 and four (trade name omitted) office, and it is hard for the above defendants 1 to find that the above defendants' statement was made at the non-indicted 4's office and the non-indicted 1's statement as evidence, and it is hard for the court to find that there was a difference between the victim 1 and the non-indicted 4's statement and the non-indicted 1's statement in this court's (trade name omitted) and the part of the above facts charged that the defendant 1's statement should not be admissible.

C. Judgment of the Supreme Court

However, we cannot accept the above decision of the court below for the following reasons.

(1) First of all, we examine the violation of the Punishment of Violence, etc. Act (at night, joint intimidation) by a policeman on April 2003 among the facts charged above.

The direct evidence of the above facts charged lies in the victim 1's statement. After the victim 1 made a statement consistent with the above facts charged from the police to the court of first instance, the victim 1 made a statement that he did not want punishment against the above defendants on the 14th trial of the first instance court, the court below reversed the previous statement to the effect that the above defendants did not have existed together at the second trial of the court below, and made a statement alleviatedly to the extent that the above defendants' statement cannot be seen as intimidation

However, according to the records, it is difficult for the above Defendants 2 to engage in corporate bonds business and engage in the above Defendants 1, and the victim 1, in relation to the motive for the above Defendants’ crime, at the police and the court of first instance, changed the key to the above Defendants’ office at the time of taking over Nonindicted Party 1’s office at the time, and refused to find the Defendants 1 and the above Defendants 2 to change the key to the above office. Furthermore, the above Defendants’ 1 and the above Defendants were found to have known of the key to the above facts charged, such as the above facts charged, and there seems to be no doubt that the above Defendants 1 and the above Defendants’ 2 were able to find out the key to the Defendant’s office at the lower court’s first instance court’s 203-year investigation record No. 24106, supra, and there is no room to view that the above Defendants 1 and 4-year office opened the victim’s key to the investigation record at the first instance court’s 14-year investigation record (the above Defendants 2 and the Defendant 141).

Nevertheless, the court below rejected the credibility of each of the above statements made by the victim 1, who correspond to the above facts charged, and affirmed the judgment of the court of first instance which acquitted the above facts charged. In so doing, it is erroneous in the misapprehension of the rules of evidence and the misapprehension of facts, thereby affecting the conclusion of the judgment.

(2) Next, the above facts charged are examined as to the violation of the Punishment of Violences, etc. Act (at night, joint intimidation) around June 20, 2003 and the violation of the Punishment of Violences, etc. Act (at night, joint damage and damage).

According to the records, at around 20:40 on June 20, 2003, 200: (a) two influences were placed in a (trade name omitted) office operated by the victim 1; (b) calls to the victim 1 as stated in the above facts charged; and (c) threaten the victim 1 to damage the equipment of the above office.

나아가 피고인 2가 피고인 1과 위 범행을 공모하였는지의 여부에 관하여 보건대, 공소외 3은 경찰 및 제1심 법정에서 이 사건 범행 이틀 전인 2003. 6. 18. 14:00경 (상호 생략) 사무실에서 피고인 2가 피고인 1 등을 불러 놓고 " (피해자 1의 성명 생략), (공소외 5의 성명 생략)에게 정을 떼라. 앞으로 손을 좀 봐줘야 한다."는 말을 하는 것을 들은 사실이 있고, 같은 날 저녁 (상호 생략) 건물 1층에 있는 식당에서 피고인 2가 피고인 1에게 " (공소외 4의 성명 생략)이 나한테 너무 섭섭하게 하고 있으니 손을 좀 봐줘라."는 말을 하는 것을 들은 사실이 있다고 진술하고 있는바, 비록 공소외 3 제1심 법정에서 피고인 2의 위 발언들이 같은 날에 이루어졌다고 진술하다가 거듭된 확인에 같은 날 들은 것은 확실한 게 아니고 다른 날인데 10일 미만 정도 차이가 난다고 하여 들었다는 일시에 관한 진술을 번복하였고, 경찰에서는 피고인 2가 폭력배를 모아놓고 그와 같이 지시하였다고 진술하였으나 제1심 법정에서는 자신이 폭력배라는 말은 사용한 적이 없다고 진술한 점이 인정되기는 하나(위 수사기록 42면, 공판기록 473면), 이와 같이 사실관계의 핵심적 내용이 아닌 들은 일시나 폭력배라는 용어의 사용 여부와 같은 사소한 점에 관한 진술의 변경만으로 피고인 2 위 발언들을 들었다는 공소외 3의 위 진술의 신빙성을 배척할 수는 없다고 할 것이고(한편, 공소외 3은 경찰과 제1심 법정에서, 공소외 4가 피고인 2의 위와 같은 말을 전해 듣고 피고인 3을 찾아가 "형님, 강사장님 이 뭔가 오해를 하고 있는 것 같은데 말씀 좀 잘해 주십시오."라고 말한 사실이 있고 이를 직접 목격하였다고 진술하였는바, 이에 대하여 피해자 1과 같은 유통업자로서 피고인 2와 어음할인거래관계에 있는 공소외 4는 제1심 법정에서 그와 같은 사실이 전혀 없다고 진술하고 있으나, 공소외 4는 경찰에서 "피고인 3의 (상호 생략)에서 피고인 2가 피고인 1에게 피해자 1, 공소외 5를 때리지는 말고 겁을 좀 주어라는 말을 들었는데 저가 옆에 있으니 피고인 2가 더 이상 말을 하지 않았다. 제가 피고인 2에게 채무를 변제하였음에도 피고인 2가 백지어음을 가지고 장난을 치고 있어 사실대로 말하는 것이다."라고 진술하다가, 제1심 법정에서는 경찰에서의 위 진술내용은 모두 피해자 1로부터 들은 것일 뿐임에도 피고인 2와 사이에 고소사건에 유리할 것이라는 피해자 1의 조언에 따라 경찰에서 허위진술한 것이라고 그 진술을 번복한 경위 등에 비추어 보면, 공소외 4가 피고인 2의 위와 같은 말을 전해 듣고 피고인 공소외 3을 찾아가 피고인 2에게 말씀 좀 잘해 달라고 부탁한 사실이 없다는 공소외 4의 진술보다는 그러한 사실이 있다는 공소외 3의 위 진술이 더 신빙성이 있는 것으로 보인다), 공소외 3의 위 진술에 의하면, 피고인 2가 피고인 1에게 피해자 1을 혼내주라고 지시하는 방법으로 위 범행을 공모한 사실을 넉넉히 인정할 수 있다.

In addition, as to whether Defendant 1 committed the crime of this case under the above order of Defendant 2, the victim 1 also stated that Nonindicted 5’s office located at a distance of about 500 meters from his office immediately after the crime of this case was committed by Defendant 1, and that Defendant 1 asked Nonindicted 5 to talk that he threatened Defendant 5. At the time, Defendant 1 had a book of telephone through the base station where the crime of this case was committed, Defendant 3 also stated that Defendant 1 did not appear to have a face-to-face box of this case from Defendant 1 and Defendant 1’s office at the police station, and Defendant 1 did not appear to have a face-to-face box of this case from Defendant 1 and Defendant 2’s office at the time of the crime of this case (the investigation record of this case) and that Defendant 2 and Defendant 1 did not appear to have a face-to-face statement from Defendant 1 and Defendant 2’s office at the time of the crime of this case, and that Defendant 1 did not appear to have a face-to-face from Defendant 1 and Defendant 5’s office.

If so, the court below should have tried against the non-indicted 5 by examining whether the non-indicted 5's name and the defendant 1 together with the non-indicted 5's name and the defendant 1 had been found and threatened to make a judgment of guilt or acquittal of the above facts charged.

Nevertheless, the court below rejected the statements of non-indicted 3 with credibility, and maintained the judgment of the court of first instance that acquitted the above charges on the ground that the statement of the victim 1 alone is insufficient to recognize the above charges. Thus, it cannot be said that there was an error of law by failing to exhaust all necessary deliberations and by mismisunderstanding facts against the rules of evidence, which affected the conclusion of the judgment.

2. Determination as to Defendant 1’s conflict

A. Summary of the facts charged

Defendant 1 sent a text message to the victim 1's cell phone on May 2003 (the name of Defendant 1 omitted) that "it is hard to see why we can see that we can see that we can see the situation at the above (trade name omitted) office around 18:40, and that the victim sent the victim a text message "I am frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frithm, frith

B. The judgment of the court below

The court below reasoned that the victim 1's police, prosecutor's office and court statement are admissible as evidence directly corresponding to this part of the facts charged, but the victim 1 was forced to use 20,000 won and 290,000 won respectively from May 1, 200 to 15:00, respectively, at the first police statement, from May 1500, and around 15:00. The court below reversed the previous statement on the ground that the above defendant did not threaten the above defendant with the exception of the facts charged at the time of interrogation of the suspect. The prosecutor reversed that the victim 1 was drinking to the above defendant's threat and actively accused the victim 1, and that it was difficult for the defendant to use the above facts as a whole, in light of the fact that the above defendant did not use the above facts charged, and that it was hard to see that the defendant did not use the above information as a victim's remaining statement in Busan District Police Agency's 20 years ago. The court below's statement is consistent with the reasoning of the judgment below.

C. Judgment of the Supreme Court

However, we cannot accept the above decision of the court below for the following reasons.

The direct evidence of the above facts charged has been consistent from the police of the victim 1 to the court of the court below. Although the victim 1 took money twice prior to the date of the above facts charged, the victim 1 made a statement to the purport that it was merely a mere amount of money by reversing his statement. However, as to the above facts charged, it is consistent with the above facts charged with the purport that the defendant was threatened with a danger from the police to the court of the court of the court below, it is consistent with the above facts charged.

In light of the records, it is doubtful that the above defendant sent text messages to the police that "I will know why I want to do so? I want to do so? I will do not want to do so? I will do so?" It is not only supporting the victim's statement that I received intimidation text messages from the above defendant, but also considering the circumstances that the victim would not receive the above defendant's telephone even if I wish to do so. Furthermore, it seems to be an exceptional situation that the above defendant's message was sent to the victim's age beyond the victim because the victim did not receive telephone. The above defendant's statement from the police station that the above money was received from the victim's money (the above investigation record 138 pages) and the prosecutor's office received 7-8 values from the above defendant's school who voluntarily disposed of the money (the above investigation record 139 pages). If the defendant's statement was based on the above defendant's statement, it seems that it is difficult for the victim to accept the above defendant's statement from the above defendant's 1 to the above defendant's statement.

Nevertheless, the court below rejected each of the above statements made by the victim 1 who correspond to the above facts charged and affirmed the judgment of the court of first instance that acquitted the above facts charged. In so doing, it is erroneous in the misapprehension of the rules of evidence and the misapprehension of the facts, thereby affecting the conclusion of the judgment.

3. Determination on each remaining point

The burden of proof of criminal facts prosecuted in a criminal trial is the prosecutor, and the finding of guilt must be based on the evidence with probative value, which makes the judge feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt of guilt against the defendant, it shall be determined with the benefit of the defendant (see Supreme Court Decisions 2002Do4994, Jan. 24, 2003; 2003Do5255, Dec. 26, 2003, etc.).

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance that acquitted Defendant 1 and 3 on the charges of violation of the Punishment of Violences, etc. Act (at night, threat) against Defendant 2 and 3 on the charges of violation of the above charges in light of the circumstances as stated in its reasoning, it is difficult to believe that the statements of the victim 3 are consistent with the above charges in light of the circumstances, and the statements of the victim 2 are insufficient to recognize them. In addition, even if there was a somewhat threatened speech in the process of receiving a letter of payment from the victims who are debtors who do not make a long-term repayment or demanding the victims to pay their debts, or it is difficult to see that the above facts charged constitute intimidation to the extent that it can be acceptable by social norms, and therefore it is difficult to see that it constitutes intimidation even if

Examining the relevant legal principles and evidence in light of the records, the above measures of the court below are just, and there is no error of law such as misconception of facts against the rules of evidence as alleged in the grounds of appeal.

4. Conclusion

Therefore, among the non-guilty portion of the judgment of the court below, the part as to Defendant 1 and 2's violation of the Punishment of Violences, etc. Act (even at night, joint intimidation) and violation of the Punishment of Violences, etc. Act (even at night, joint violation), and Defendant 1's public conflict are all reversed, and this part of the case is remanded to the Panel Division of the Busan District Court for further proceedings consistent with this Opinion. The prosecutor's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)