[1] The purport of Article 254 (4) of the Criminal Procedure Act and the specific extent of the facts charged

[2] Probative value of the statement prepared by the assistant judicial police officer, and the protocol and document containing the full text or full text of the statement

[3] The meaning of "when the original statement was made under particularly reliable circumstances" and "when the original statement was made under particularly reliable circumstances" under Articles 314 and 316 (2) of the Criminal Procedure Act

[4] The case holding that the case where the original statement constitutes "when the original statement is unable to make a statement" as referred to in Articles 314 and 316 (2) of the Criminal Procedure Act, where an infant who is the victim stated in an investigation agency made a statement in the court, but the victim made a statement to the effect that his/her memory as to a certain matter at the time of the examination of the witness was made impossible to reproduce part of

[5] Whether the person making the original statement must be in a state that he/she has the ability to make the statement when he/she hears the statement from the person making the original statement as evidence (affirmative), and the standard for determining whether he/she has the ability to make the statement

[6] The case holding that the testimony ability of a female victim, who was the victim of the age of 3 to 3 years and 7 months, at the time of the accident, and the credibility of such statement

[1] The purport of Article 254(4) of the Criminal Procedure Act that specifies the facts charged by specifying the date, time, place, and method of a crime is to limit the scope of the trial against the court and facilitate the exercise of the defense by specifying the scope of the defense against the defendant. Thus, considering the nature of the indicted crime, it is sufficient to specify the facts causing the public prosecution by stating the date, time, place, method, purpose, etc. to the extent that the facts constituting the cause of the public prosecution can be distinguished from other facts, and even if some of them are unclear, it is sufficient to specify the facts charged in accordance with the stated other matters, and thus, it does not affect the validity of the public prosecution if

[2] The victim's statement prepared by a judicial police officer is admissible only when the authenticity is acknowledged by the statement of the person who made a statement in the court in accordance with Article 313 (1) of the Criminal Procedure Act, or when the person who made a statement in the court in question (victim) is unable to make a statement due to death, illness, residence in a foreign country, or any other reason and when the statement is made under particularly reliable circumstances. On the other hand, the protocol and the document containing the full statement or the full-time statement are inadmissible as evidence in principle in accordance with Article 310-2 of the Criminal Procedure Act. However, the full-time statement is inadmissible only when the person who made the statement is unable to make a statement due to death, disease, residence in a foreign country or any other reason, and it is made under particularly reliable circumstances, and the protocol and the document containing the full-time statement can be admissible as evidence under Articles 313 through 314 of the Criminal Procedure Act, and further, it satisfies the above requirements under Article 316 (2) of the Criminal Procedure Act.

[3] The phrase "when the original statement is unable to be made" under Articles 314 and 316 (2) of the Criminal Procedure Act refers to cases where the original statement is made to the effect that a part of its statement is impossible to be reproduced because the original statement made a statement to the effect that it is not memory as to a certain matter at the time of examination of witness even though the original statement made a statement in court, except as explicitly enumerated above, such as death or disease." The phrase "when the statement or preparation was made under particularly reliable circumstances" refers to cases where there is little room for false intervention in the preparation of the content of the statement or protocol or document, and there is specific and external circumstances that guarantee the credibility or voluntariness of the contents of the statement.

[4] The case holding that where part of the statement was not practicable because an infant who is the victim stated by an investigative agency made a statement in the court, but at the time of the examination of witness, it constitutes "when the original statement is unable to make a statement" as referred to in Articles 314 and 316 (2) of the Criminal Procedure Act

[5] In the testimony of a medical specialist as evidence, the person making the statement must be in the state of mental ability equivalent to that of the person making the statement at the time when he hears the statement from the person making the statement. The witness's testimony ability is a witness's mental ability to make the statement according to his memory. Thus, the existence of the witness's testimony ability is not merely based on the age of the person making the statement, but it should be decided individually and specifically according to his intellectual level, as well as the attitude and contents of the oral statement, and it should be determined by considering sufficiently whether the facts in the past belong to the extent that it can be changed by his understanding of the person who made the statement, decision, etc.

[6] The case holding that the testimony ability of a female victim, who was the victim of the age of 3 to 3 years and 7 months, at the time of the accident, and the credibility of such statement shall be recognized

[1] Article 254 (4) of the Criminal Procedure Act / [2] Articles 310-2, 313 (1), 314, and 316 (2) of the Criminal Procedure Act / [3] Articles 314 and 316 (2) of the Criminal Procedure Act / [4] Articles 314, 313 (1), and 316 (2) of the Criminal Procedure Act / [5] Articles 146 and 307 of the Criminal Procedure Act / [6] Articles 146 and 307 of the Criminal Procedure Act

［1］ 대법원 2004. 3. 26. 선고 2003도8077 판결 (공2004상, 767) 대법원 2005. 12. 22. 선고 2003도3984 판결 (공2006상, 193) ［2］［3］ 대법원 2000. 3. 10. 선고 2000도159 판결 (공2000상, 1001) ［2］ 대법원 2001. 7. 27. 선고 2001도2891 판결 (공2001하, 2024) ［3］［5］ 대법원 1999. 11. 26. 선고 99도3786 판결 (공2000상, 112) ［3］ 대법원 1992. 3. 13. 선고 91도2281 판결 (공1992, 1346) ［5］ 대법원 1999. 11. 26. 선고 99도3786 판결 (공2000상, 112) 대법원 2001. 7. 27. 선고 2001도2891 판결 (공2001하, 2024) 대법원 2004. 9. 13. 선고 2004도3161 판결 (공2004하, 1681)

Defendant

Defendant

Attorney Lee Jin-jin

Seoul High Court Decision 2005No2106 Decided November 23, 2005

The appeal is dismissed. 130 days out of the number of detention days after the appeal shall be included in the original sentence.

The defendant and public defender's grounds of appeal are examined together (the supplementary grounds of appeal by the defendant shall be within the scope of supplement).

1. The purport of Article 254(4) of the Criminal Procedure Act that specifies the facts charged by specifying the time, place, and method of a crime is to limit the scope of trial against the court and facilitate the exercise of the defense right by specifying the scope of defense against the defendant. Thus, considering the nature of the indicted crime, it is sufficient to specify the facts causing the public prosecution by stating the time, time, place, method, purpose, etc. to the extent that it is possible to distinguish the facts constituting the cause of the public prosecution from other facts. Even if some of it is unclear, if it is possible to specify the facts charged together with other matters indicated, and if it does not interfere with the exercise of the defense right of the defendant, it does not affect the validity of the public prosecution (see Supreme Court Decision 2003Do3984, Dec. 22, 2005

According to the facts charged in this case and the record, the prosecutor specified the date and time of the crime on the ground of the defendant's statement at the time of interrogation of the first interrogation of the prosecution which is admissible as evidence as "the date and time of the crime" or "the house of the defendant in the Seo-gu, Seo-gu, Daejeon," and specified the place of the crime as specific as far as possible. In light of the nature of sexual assault crime in the family where the crime is closely committed, the facts charged in this case limited the object of the trial by the court and specified the scope of the defendant's defense to the extent that it does not interfere with the defendant's exercise of defense.

The judgment of the court below to the same purport is just and acceptable, and there is no error in the misapprehension of legal principles as to the specification of facts charged, as otherwise alleged in the grounds of appeal.

2. In light of the records, there is no evidence that the confession of the defendant during the first interrogation of suspect does not constitute a false statement due to the reduction of liability for the crime, coercion by an investigation agency, etc. (The defendant also made a statement to the police that recognizes the crime of this case, but the police did not deny its contents and thus the court below did not consider it as evidence of guilt). The argument in the grounds of appeal on this part is without merit.

3. The statement of the victim prepared by the judicial police officer is admissible only when the authenticity is acknowledged by the statement made by the person who made the statement in a trial court pursuant to Article 313(1) of the Criminal Procedure Act, or when the person who made the statement in a trial court (victim) is unable to make a statement due to death, illness, residence in a foreign country, or any other reason and when the statement is made under particularly reliable circumstances. Meanwhile, the protocol and the document containing the full text or the full text are inadmissible as a matter of principle pursuant to Article 310-2 of the Criminal Procedure Act. However, the full text statement is admissible only when the person who made the statement is unable to make a statement due to death, disease, residence in a foreign country, or any other reason, and its full text statement is made under particularly reliable circumstances, and the protocol and document containing the full text statement can be admissible as evidence under Articles 313 through 314 of the Criminal Procedure Act, and it also satisfies the above requirements under Article 310-2(2) of the Criminal Procedure Act.

In addition, Articles 314 and 316(2) of the Criminal Procedure Act provide that “when the original person is unable to make a statement” includes cases where the original person makes a statement to the effect that his/her memory as to certain matters at the time of examination of a witness even if the original person made a statement in the court, other than reasons explicitly enumerated in death, disease, etc., is not possible.” The term “when the statement or the preparation is made under particularly reliable circumstances” in the above provisions refers to cases where there is little room for false entry in the contents of the statement or the preparation of the protocol or documents, and there is no specific and external circumstances that guarantee the credibility or decentralization of the contents of the statement (see, e.g., Supreme Court Decisions 9Do3786, Mar. 13, 1992; 9Do3786, Nov. 26, 199; 200Do159, Mar. 10, 200).

According to the records, it is evident that there was no clear recognition of the establishment of the above victim's statement of non-indicted 1 prepared by the court of first instance, "non-indicted 2, 3, and 4 of the first instance witness at the court of first instance, each legal statement prepared by the judicial police assistant, non-indicted 4 of the non-indicted 4 of the non-indicted 2 of the non-indicted 4 of the non-indicted 2 of the non-indicted 2 of the non-indicted 2 of the non-indicted 2 of the non-indicted 3 of the non-indicted 3 of the non-indicted 3 of the non-indicted 3 of the non-indicted 3 of the non-indicted 3 of the non-indicted 3 of the non-indicted 3 of the non-indicted 3's psychological evaluation report (hereinafter "the non-indicted 3 of the non-indicted 1')" such as the victim's appearance as witness at the court of first instance and the statement made by the non-indicted 3 of the above non-indicted 1 of the defendant 3 of the evidence."

The judgment of the court below to the same purport is just (However, since the statement recording tape (No. 2) which the assistant judicial police officer has recorded and recorded the above victim's statement process in the police together with the above victim's investigation and photographing process, it is recognized that the above victim's non-indicted 4 (social workers at the office (name omitted) in trust with the above victim) who was present in the police's investigation and photographing process is authentic by the statement made in the verification procedure for the above statement recording tape on the third day of the court of first instance, the above statement recording tape shall be admissible by Article 21-2 of the "Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, etc.," although the above statement recording tape shall be admissible by the court below's finding the admissibility of evidence against the above statement recording tape under Article 314 of the Criminal Procedure Act, the conclusion that it is not clear whether the above statement recording tape is admissible, it does not affect the conclusion of the judgment, and it does not affect the conclusion of the judgment, as alleged in the ground for appeal.

4. When the testimony of a medical specialist is admitted as evidence, the person making the original statement must have the ability equivalent to that of the testimony at the time when the person making the statement hears the statement from the person making the original statement. However, the witness's testimony ability is a mental ability which makes the fact that he had experienced in the past according to his memory. Thus, as to the witness's testimony ability, the existence of the witness's testimony ability is not merely based on his age but should be determined individually and specifically according to his intellectual level, as well as the attitude and contents of the oral statement, and it should be determined by sufficiently considering whether the facts of the past are within the scope that can be changed by his understanding, judgment, etc. (see Supreme Court Decisions 9Do3786, Nov. 26, 199; 2004Do3161, Sept. 13, 2004, etc.).

Examining the record in light of the above legal principles, the victim non-indicted 1 (the victim's life on July 14, 199 was 3 to 3 years old at the time of the accident in this case) was the victim's ability to make a statement, and the victim's ability to make a statement was 5 months old or 5 months old or 7 years old at the time of the accident in the child center (title omitted) and the victim's ability to make a statement was the victim's ability to make a statement with non-indicted 3 at the time when he was given medical examination and evaluation (title July 7, 2004) at the clinical medical center (name omitted), and at the time of conversation with non-indicted 4 (name omitted) at the time of the victim's oral statement, the victim's ability to make a statement with his ability to make the above statement was relatively high or high, and the victim's ability to make a statement was not only the victim's ability to make a statement with the victim's ability to make a statement at the time of the police's statement.

In the same purport, the above decision of the court below that recognized the victim's ability to testify or the credibility of the statement is just and acceptable, and there is no violation of the rules of evidence or misapprehension of legal principles as to the credibility of the statement of young children.

5. In full view of the evidence of the first instance court maintained by the court below, including the confessions made by the defendant at the prosecutor's office, the above victim's statement and the above expert evidence, all of the criminal facts of this case can be found guilty. Thus, the ground of appeal that the judgment below erred by mistake of facts cannot be accepted.

6. Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)