(영문) 서울중앙지방법원 2018.11.15 2018노1818

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Reasons

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크기(pt)

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줄 간격

자간(%)

(영문) 서울중앙지방법원 2018.11.15 2018노1818

폭행

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All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant (misunderstanding of facts and improper sentencing) did not commit an assault against the victim, such as the victim’s assault under Article 2(2) of the facts charged ( violence on September 30, 2015).

The punishment sentenced by the court below (4 million won) is too unreasonable.

B. The sentence that the court below rendered by the prosecutor (unfair sentencing) is too uneasible and unfair.

2. Determination

A. As to the Defendant’s assertion of mistake of facts, the victim’s statement is consistent with the main part of the statement’s statement in light of the empirical rule, and there is no provision inconsistent with the victim’s statement in a unreasonable or unreasonable manner, and there is also no clear motive or reason to make a false statement unfavorable to the Defendant (see Supreme Court Decision 2006Do5407, Nov. 23, 2006). In a criminal trial proceeding, the first instance court’s proceeding for the examination of witness, and then determined the credibility of the statement, the court should not dismiss the credibility of the statement without any justifiable reason (see Supreme Court Decision 2006Do5407, Nov. 23, 2006). In determining credibility of the statement, the first instance court’s proceeding for the examination of witness is consistent with the reasonableness, logical and empirical rule, or evidence or third party’s statement before and after the oath of a judge, and the witness’s appearance, attitude, and appearance of the witness’s statement that are made in the open court after the oath of a judge.

On the other hand, the appellate court's determination of credibility of the statement made by the witness in the first instance court under the current Criminal Procedure Act is based on the records including the witness examination protocol in principle, so it has the intrinsic limitation that the appearance, attitude, and statement of the witness at the time of the statement that can be considered one of the most important factors in determining credibility of the statement can not be reflected in the evaluation of credibility.

The credibility of the first instance court and the appellate court.

참조판례

-대법원 2006. 11. 23. 선고 2006도5407 판결

유사 판례

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