[1] Requirements for the recognition of conviction only with indirect evidence in a criminal trial regarding a crime with heavy statutory penalty, such as murder, and the degree of proof for the recognition of murder by a defendant who denies the whole crime in a situation where the body is not discovered

[2] In a case where the defendant was prosecuted for murdering the victim Gap who was in the same business relationship with the same time by asking for the Gu, and the body of the defendant was not found, and there was no direct evidence as to this, the case holding that Gap died at a certain time in light of all circumstances, and that the defendant guilty on the ground that the facts charged are acknowledged without a reasonable doubt when comprehensively considering the witness Eul's reliable professional statement with credibility and the indirect facts supporting this, which stated that "the murdering of A" was committed by the defendant

[1] Even in the case of a crime with heavy statutory penalty, such as murder, a person may be found guilty with indirect evidence without direct evidence. Even if the body of the victim is not discovered, the indirect evidence may be comprehensively examined under mutual relation, and the facts charged of murder are recognized. However, a careful judgment is required with regard to indirect evidence closely related to the facts charged. In addition, in order to recognize the liability for the crime of murder against the defendant who denies the whole crime in a situation where the body is not discovered, the fact of the victim’s death should be proven additionally and preemptively, as well as the fact that such death of the victim was caused by the act of the defendant who had the intent to kill should be proven to the extent that there is

[2] In a case where the defendant heard the statement that he would file a criminal complaint against the victim Gap who was in his business relationship with the victim that he would do not repay investment money to the victim Gap, and he was charged with spambling by putting deep stuffs, citing a large quantity of soil by using excavation equipment, and the defendant denied the crime, and the body of the defendant was not found, and there is no direct evidence as to this, the case held that Gap died at a certain time, and that the witness's statement made by the witness that the defendant "homicide Gap" was made as a woman living together with the defendant's front-time statement was made under particularly reliable circumstances, and that the witness's statement was admissible as evidence since it was made under the circumstances such as the contents and attitude of Eul, the defendant's statement made by Eul, the circumstances that the defendant reported the crime, the defendant's motive and attitude after his disappearance, and other indirect facts such as the defendant's oral appearance after his disappearance, etc. are found, and the defendant's testimony and credibility of the crime are not found.

[1] Article 250 of the Criminal Act, Articles 307 and 308 of the Criminal Procedure Act / [2] Article 250(1) of the Criminal Act, Articles 307, 308, 310-2, and 316(1) of the Criminal Procedure Act

[1] Supreme Court Decision 2007Do10754 Decided March 13, 2008, Supreme Court Decision 2011Do1902 Decided May 26, 201 (Gong2011Ha, 1352)

Defendant

Park Jae-chul et al. and one other

Attorney Yu-chul et al.

A defendant shall be punished by imprisonment for 13 years.

1. homicide;

around October 207, the Defendant was friendly with Nonindicted 1 (the age of 31 at that time) working on the same day, when working as a “Spanish engineer,” who is an engineer of the daily-use equipment, at the Spanish located in Chungcheongnam-si. On February 2008, the Defendant agreed to operate a “Spanish office” as a partnership business, which is a victim and an enterprise supplying Spanish engineer at the construction site, as the partnership business. From March 24, 2008 to April 16, 2008, the Defendant was granted KRW 8 million from the victim as the operating fund of Spanish office, but the said business was not carried out as the plan. After that, the Defendant again failed to obtain the victim’s consent to purchase the Korean passport illegally collected, but did not go through the agreement with Nonindicted 200,000,000 won prior to the purchase of the vehicle under the name of Nonindicted 4,000,000 won.

From April 28, 2008 to April 30, 2008, the Defendant told the victim to file a complaint for fraud in a case where he did not pay the money invested by the victim to the victim, while dividing the victim’s talk at the logistics warehouse foundation site located in Pyeongtaek-si or Pyeongtaek-si. After being detained for other cases, the Defendant, who was under probation, was forced to hear the above statements from the victim who is a kind of social ties, was frightened with the victim, and was frightened to use the victim’s gas for drinking. The Defendant frighted the victim’s gas from the victim’s main machine to the extent that the victim lost his mind by taking advantage of the fall short of the body of the victim, and put the victim in a deep folded folded ice with the victim made it an unsatched with the victim by an unsatching satch with the victim. After the Defendant, the Defendant killed the victim by using the excavated machine, and caused the victim to kill the victim with soil.

Accordingly, the Defendant murdered the victim.

2. Violation of the Road Traffic Act;

(a) Unlicensed driving on January 6, 2012;

On January 6, 2012, the Defendant driven (vehicle number omitted) car without a driver's license on the road near the Defendant's house located in the Jindo-Eup, Ansan-si (Road number 1 omitted).

(b) Unlicensed driving on February 26, 2012

On February 26, 2012, the Defendant driven (vehicle number omitted) car without a driver's license on the road near the Defendant's house located in the Jindo-Eup, Do-si (number 1 omitted).

1. Partial statement of the defendant;

1. Each legal statement of the witness Nonindicted 3, 2, and 4

1. A protocol of examination of part of the defendant by prosecution;

1. Each police statement made against Nonindicted 5 and 6

1. Investigation report (related to the motor vehicle register owned by the defendant), investigation report (related to the attachment of the statement of missing report by the victim non-indicted 1), investigation report (related to the attachment of the victim non-indicted 1's entry into and departure from the Republic of Korea), investigation report (related to the termination of the victim non-indicted 1's cell phone), investigation report [related to the defendant, the victim, the victim non-indicted 1 and the former vehicle ownership], investigation report (related to the victim non-indicted 1's passport issuance record report), investigation report (related to the "○○○ Fund" in

1. Response data (FFC), response data (FFC), request for disposal of disqualifications for driver's license, details of health insurance premiums benefits, probation records, criminal records analysis records before and after committing the criminal suspect or victim, driver's license inquiry or cancellation, copy of an application for issuance of a passport, and passport issuance records review;

1. Decision of the court rendered in accordance with the Suwon Land Site Act 07 high-class 239; and

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 250(1) of the Criminal Act (Selection of Imprisonment for Imprisonment), Article 152 subparag. 1, and Article 43 of the Road Traffic Act (Operation without License, Operation without License, and Selection of Imprisonment)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Limits to Aggregate of Long-term Punishments in the above crimes)

The crime of murder of this case, which resulted in the victim's death, the victim's surviving family member was born for four years after the victim's life and death, and the victim's surviving family member's suffering is sufficiently anticipated (the father of the victim committed suicide after the victim's disappearance). Nevertheless, the defendant denied a model-off crime due to the circumstances that make it difficult for him to understand, and added the argument that the defendant would be expressed in court whenever evidence unfavorable to the defendant would be expressed in the court. The defendant stated that the police officer present as witness in this court would be subject to harsh treatment, bath, even assault, and assault, but the defendant was appointed by a private defense counsel at that time and investigated with his defense counsel, and that the defendant was unable to reach a free meeting with the police officer at that time, or that the defendant was committed as a witness of this case, and that the defendant did not have any doubt about the victim's cruel act, assault, or assault, and that he did not raise any punishment for the defendant as a witness of this case, the defendant and the police officer present in court.

Considering the above circumstances, in accordance with the sentencing criteria for murder crimes, the sentence like the order shall be imposed upon the recommendation of a majority of jurors within the scope of the basic area (referring to the range of recommended sentence: 9 to 13 years) of ordinary motive homicides.

1. Summary of the assertion

It is also unclear whether the Defendant did not murder the victim and whether the victim died.

2. Determination

A. Key issue

In this case, there is no direct evidence of the facts charged that the victim did not discover the body of the victim, and there is no direct evidence of the facts charged that the defendant murdered the victim.

In the case of a crime with heavy statutory penalty, such as murder, a person may be found guilty by indirect evidence without direct evidence, and even if the body of the victim is not discovered, the indirect evidence may be comprehensively examined in relation to the crime of murder. However, the conviction requires careful judgment based on the relevant indirect evidence as to the facts charged. In addition, in order to recognize the liability for the crime of murder against the defendant who denies the whole crime in a situation where the body is not discovered, the fact of the victim’s death should be additionally and preemptively proved, as well as the fact of the victim’s death should be proven to the extent that there is no reasonable doubt that the death of such victim was caused by the act of the defendant who has the intent to murder (see Supreme Court Decision 2007Do10754, Mar. 13, 2008, etc.).

Therefore, we will examine whether the victim died, and whether the victim’s death was caused by the act of the defendant with intent to murder.

B. The defendant and the victim's criminal records at the time of the case

The evidence adopted and examined by this court, in particular, from March 2008 to May 2008, the following

On April 16, 200, the victim transferred 1 million won to the defendant on April 5, 200 on the date and time (2008): 4.20 million won; on April 20, 200, the victim transferred KRW 4 million to the defendant to the defendant; on April 21, 20, the victim applied for the victim passport on April 20, 4: 4. 4. 4. 4. 4. 4. 4. 25. 4. 4. 4. 4. 5. 4. 4. 4. 4. 4. 4. 5, the victim purchased the vehicle from the victim to the victim (the victim non-indicted 2), and the victim purchased the vehicle from the non-indicted 5, 500,000, 500 . 4. 5. 5. 8. 5, 100,000 3: 4. 26. 26. 204. 26. 26. 3

C. Whether the victim died

First of all, it is examined whether the victim died since the body of the victim was not found up until now.

According to the evidence duly adopted and examined by this court, the following facts are recognized.

① On the age of 20 years in 196, the victims married with Nonindicted Party 2 and had three children under the chain. From March 2008 to March 2008, the victims supported the wife and children.

② Around October 2007, the victim sold the excavated machine possessed by the Defendant and operated the Spanish office with the Defendant. On April 22, 2008, the victim filed a divorce report with Nonindicted 2 on April 22, 2008, and renounced the right of custody for the children. However, Nonindicted 2 paid 1.5 million won per month to the children’s child support to Nonindicted 2, and at any time, deemed the children at any time, and even after the divorce, the relationship with the family members, such as Nonindicted 2’s transfer of the son to the hospital by Nonindicted 2’s request.

③ The victim did not have any particular problem between his parents, siblings, and friendlys. On April 16, 2008, the victim attended the Chokndo Tris on April 16, 2008 and tried to take her mother-friendly Nonindicted 10 toward mutual balance. The victim did not have any contact with his parents, siblings, and family until the victim was missing at the end of April 2008.

(4) The victim shall apply for a passport on April 17, 2008 and receive a passport on April 21, 2008, but there shall be no record of departure from Korea from Korea.

⑤ After the victim was divorced with Nonindicted Party 2, the victim was accommodated and living in the house of the Defendant, and was scheduled to operate a Spanish office with the Defendant, or to operate a forged passport sales business, and joined a new cell phone on April 28, 2008.

6. However, since May 2008, the victim did not contact with his/her parents, siblings, children, and relatives, etc. for more than four years, but did not use a mobile phone, or used a medical institution or financial institution.

In full view of the above facts, it is reasonable to view that the victim died around April 28, 2008, taking into account the victim’s ordinary living attitude, family relation, and happiness.

The Defendant, around April 2008, decided to operate a counterfeited passport sales business with the victim, and the victim created a counterfeited Chinese passport to China, so it is difficult to believe that the victim was likely to depart from China with a forged Chinese passport sales business. However, it is difficult to recognize the Defendant. The victim is not aware of Chinese language, and there was no money at the time, and the victim did not know of the person operating a passport sales business in China. The victim did not use his own passport issued on April 21, 2008 but did not use it, and there is no reason to allow the Defendant to depart from China. If the victim tried to sell his own passport in China, it is reasonable to allow him to leave the Chinese passport, as a matter of course, the record of his own Chinese passport sales from China to China. If the victim purchased a passport from China without the recording of his own passport from China, it is difficult to understand that the victim sold it from the above Chinese passport to the Republic of Korea to the Republic of Korea, but it is also difficult to understand that the victim sold it with the above Korean passport.

D. Whether the defendant was killed

1) Next, there is no evidence other than Nonindicted 4’s hearsay statement that Nonindicted 4, the most essential evidence in the instant case, examined the admissibility and credibility of Nonindicted 4’s hearsay statement, and examined indirect facts supporting this, as to whether the Defendant killed the victim at the construction site, as in the facts charged, at the construction site, the victim was killed.

2) Probative value of Nonindicted 4’s full statement

The hearsay statement is originally admissible in accordance with the provisions of Article 310-2 of the Criminal Procedure Act, but it is admissible as evidence only when it is proved that 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 (Article 316 (1) of the Criminal Procedure Act). Here, "when the statement was made under particularly reliable circumstances" refers to cases where there is little room for any falsity to intervene in the fact that the statement was made in a particularly reliable state, and there is any specific and external circumstance to guarantee the credibility or voluntariness of the contents of the statement (see Supreme Court Decision 2004Do482, Apr. 27, 2004, etc.). However, since Nonindicted 4 made a statement from the defendant at the Masan, which was located in Masan, at the time of living with the defendant, that the statement was made by the defendant, while the statement was made again by Nonindicted 9 on May 2, 2008.

Therefore, the testimony of Nonindicted 4 is admissible as evidence, but it is a question of credibility of the statement.

3) The credibility of Non-Indicted 4’s statement

The full text of Nonindicted 4’s statement that Nonindicted 4 homicided the victim from the Defendant is reliable for the following reasons.

① First, Nonindicted 4 appeared as a witness in this court and made an oath among jurors in the open court, and responded to the cross-examination of the prosecutor’s main examination and defense counsel during the period from 10 A.M. to 12 P.M. 2 p. 2 p.m., and during the long-term period from 2 P.M. 6 p.m., Non-Indicted 4 generally credibility in light of not only the statement but also the appearance and attitude of the

② 공소외 4가 신고한 경위를 살펴보면, 공소외 4는 2010. 11.경 피고인과 헤어지고 난 후 2011. 2.경 서울지방경찰청에 ‘피고인이 공소외 1을 죽였다’는 내용으로 처음 제보하였고, 2011. 9. 23. 작성한 자필 우편조서에서는 ‘피고인과 함께 일했던 공소외 1이 피고인보다 2~3살 어렸고 이혼한 지 얼마 되지 않았으며 자녀가 3명 있었다’고 특정하였는데, 2008. 5. 15. 피고인과 출국한 후 한국에 입국한 적 없는 공소외 4로서는 피해자의 생사 여부나 실종 여부를 확인할 수 있는 방법이 없었음에도 위와 같이 제보하였다는 점에서 이를 허위로 꾸몄을 가능성은 매우 낮다(수사기관도 피해자의 실종신고 내역, 가족 등 주변인 조사, 출입국 조회, 각종 건강보험 사용내역, 휴대전화 통화내역, 금융거래내역 등을 조사하고 나서야 2008. 4. 이후 대한민국 내에서 피해자의 행적이 전혀 없음을 발견하게 되었다).

③ Nonindicted 4 made a statement from the Defendant to the following purport as to the developments leading up to Nonindicted 4’s aforementioned remarks.

“Around April 2008, the Defendant was at the latest on one hour, and there was no string and satisfy, and the Defendant was satisfy. At home, the Defendant was satisfying the mixed alcoholic beverage at home, and satisfying it to China. Since the Defendant did not have to go to China, Non-Party 4 was currently illegal stay, the Defendant was satisfying to China, so it is impossible to go back to China.

On May 2, 2008, the next day (the next day, when the letter of mail was prepared, was written to licker) the Defendant called on May 2, 2008, and her own phone, went to the school and she was playing in the Asan hot spring. Through the Internet, the Defendant promised to do so and she went to play in the Asan City. After playing in the Asan Masan Matern, Nonindicted 9 was her own, and the Defendant tried again to live in China. Accordingly, the Defendant asked the victim at the construction site as described in the facts charged, and the Defendant was asked for the death of the victim. The Defendant did not return money to the Masan Masan Masan, which would have made the victim and the Spanish, and did not return money to the Defendant, but did not return money.

Non-Indicted 4’s statement is not only concrete, but also the following circumstances, namely, that the defendant left early to and out from the school, the defendant left home due to Asan, the defendant did not leave her work before Isan and did not leave her country after I leave her, and the defendant has already been living with Non-Indicted 4 for about three years since September 2005, the defendant had already been living with the non-Indicted 4 who is able to escape to China for about three years, and the defendant had no choice but to keep his secret to learn Non-Indicted 4 who is intending to move to China. In light of the circumstances, the defendant believed that he died of his death to the non-indicted 4 on May 15, 2008 with the knowledge that the defendant could not enter Korea again after I leave Korea.

④ Furthermore, according to the evidence of this case, Nonindicted 4’s motive for committing the crime is sufficient for Nonindicted 4 to obtain full payment from the Defendant. In other words, according to the Defendant’s “Spanish office” or “Spanish office”, the victim transferred the sum of KRW 8 million from March 26, 2008 to April 21, 2008, to the Defendant to operate a business of selling forged passports, and even thereafter, he had been living in a female house with Nonindicted 2, divorced with the former and transferred the right of custody of his child to Nonindicted 2. However, there is no clear evidence that the Defendant invested in the same business with the victim, and there was no evidence suggesting that the Defendant made a large amount of money to receive money from the victim (the Defendant did not submit any material supporting this), and the “Spanish office” could not be properly operated. Moreover, since Nonindicted 1 had been excavated as an article since he graduated from a high school, and there was no possibility that the Defendant would have attempted to return money to the Defendant’s business.

In this situation, the defendant who was detained and was under probation has been under the period of probation, and was under the period of probation. On the other hand, the defendant was able to kill the victim who was well aware of the defendant's speech.

4) Indirect facts supporting the Defendant’s murder of the victim

A) The fact that the victim's belongings was destroyed

Nonindicted 4 stated that the Defendant was carrying the victim’s clothes, cellular phone, wallets, and identification card, and the Defendant also recognized the fact that the Defendant was carrying the victim’s clothes. This constitutes an indirect fact supporting the Defendant’s murdering the victim. According to Nonindicted 4’s statement, according to Nonindicted 4’s statement, the Defendant took money out from the victim’s cell phone while carrying the victim’s mobile phone and took money out from the victim’s wall, and the act of destroying evidence is an indirect fact supporting the Defendant’s murdering the victim.

This also applies even if there was no cell phone and identification card in the victim's possession as the defendant's assertion. This is because even if the defendant was in close vicinity to the victim, it is an act that can not be said that the victim did not know that he would not return again after he was missing, taking away the victim's belongings within 100 meters from the defendant's residence and almost the same day. If the victim was in active service as the defendant's assertion, he would have brought about the victim's belongings, and if the victim's belongings in the vehicle is left unnecessary, it would have been easily resolved by leaving it as it is, and if it is difficult for the victim to take it away from the need of the victim's belongings in the vehicle, it would have been able to be resolved simply by leaving the vehicle up to the bottom of the same bridge, but there is no reason to blick the victim's clothes, even though the victim's clothes.

With respect to the time when the defendant took possession of the victim's belongings, it is not consistent with the non-indicted 4's statement as to whether the non-indicted 4 was aware that he killed the victim from Asan before hearing the statement that he killed the victim from the defendant in Asan, or whether the vehicle was dead at Pyeongtaek. In other words, in the postal protocol prepared on September 23, 201, the non-indicted 4 stated that the non-indicted 4 had taken possession of the victim's belongings on the way that he bought the vehicle first after he fell in Asan. When he was first present at the investigation agency and was investigated at the investigation agency on April 26, 2008, the non-indicted 4 was unable to take possession of the victim's belongings on the way that he was dead at Asan, and eventually, the police officer's statement was carried out from March 26, 2008.

However, as long as it is obvious that the defendant carried the victim's goods after April 28, 2008, the victim was satisfying (if the victim was working, the defendant was at the time of living with the victim within 100 meters, and the defendant was at the same time living with the victim, so there is no reason to retire from the side of the bridge). The reversal of the non-indicted 4's above statement was concurrent and multiple cases (the day at which the non-indicted 4 purchased a multi-party vehicle from the Asan, the day of the car dealer registered with the Pyeongtaek-si commercial, the day of the car dealer's possession of the victim's goods from the satisfy in the middle, the day of living with the victim's satisfy, and the day of living with the defendant's satisfy in the satfy and the day of living with the victim's satisfy, the defendant did not have any influence on the credibility of the case, and did not reach the credibility of the case.

In addition, Nonindicted 4 made a statement at an investigative agency that the Defendant had considered the victim's resident registration certificate during the goods in which the Defendant was unclaimed, but in this court, Nonindicted 2 appeared as a witness and made a statement that there was the victim's resident registration certificate and seal impression in the victim's Lone Star vehicle.

However, although Nonindicted 4’s appearance in the Korean language, the first entry into the Republic of Korea in 2005 for the first time and did not bring about the identification card of the Republic of Korea to the illegal aliens, and thus, it may not be clearly distinguished from the resident registration certificate and the driver’s license. In addition, in light of the fact that the victim submitted a copy of the driver’s license on April 28, 2008 when applying for a mobile phone on April 28, 2008, the victim appears to have not been holding the driver’s license in the ordinary party A, given that Nonindicted 4’s identification card at the time of Nonindicted 4 was highly likely to be the victim’s driver’s license, the above inconsistency is not a decisive part of Nonindicted 4’s impeachment.

B) The defendant did not find the victim

According to the above evidence, at the time of the victim's disappearance, the victim operated a "Spanish office" with the defendant while operating a "Spanish office" or operating a forged passport sales business at the defendant's house near the defendant's house at the time of his/her disappearance, and the defendant was almost the same day as the defendant was almost the same. However, the defendant did not find the victim at all after his/her suicide. However, the defendant did not have the victim at all after he/she got out of the victim. The defendant stated that he/she did not have the victim called once, and the victim did not have known that he/she was using a forged passport with the victim's passport and did not find it later to China. However, if the defendant was recognized in this court, the victim could not run the forged passport sales business with his/her own name, and therefore, the statement of the defendant does not comply with this Opinion. The above circumstances are sufficient indirect facts that the defendant had already been aware of the death of the victim.

C) Imprising China

Next, upon examining the following facts on May 2, 2008 after the defendant and non-indicted 4 went into Asia, the defendant and non-indicted 4 went into China urgently. In other words, according to the evidence above, the defendant applied for a passport on May 6, 2008 and was issued a passport on May 9, 2008. The defendant again sold a multi-pact vehicle with approximately 1.5 days less than 15 days less than the purchase date on May 14, 2008. The defendant was able to kill Non-indicted 4.6 months more than 1.6 months more than 1.6 months more than 1.6 months more than 6 months more than 1.6 months more than 4 days more than 1.6 months more than 4 days more than 17 days more than 10 days more than 4,000,0000 ○○○○○ 102, which had been terminated, and the defendant was found to have left China as a new probation officer without any strong risk.

Although the Defendant alleged in this court that the Defendant had judged to go to China since two months ago, and that there was no thought of permanent conflict, there was no evidence to support this, and if the Defendant’s assertion was true, the Defendant could not explain the reason for the second sale of the vehicle with the victim’s money on April 26, 2008.

5) Conclusion

Therefore, in full view of the reliable Nonindicted 4’s professional statement and various indirect facts, the instant facts charged are acknowledged without any reasonable doubt.

On the other hand, the Defendant asserts that Nonindicted 4 demanded a solatium of KRW 200 million from the Defendant and refused to demand consolation money, and that he made a false accusation in order to mislead the Defendant. However, Nonindicted 4 did not receive 7 million assistance from the Defendant when first met with the Defendant, and that he was well aware of the Defendant’s economic ability while maintaining the living relationship with the Defendant from September 2005 to November 201, and thus, it does not seem to have demanded consolation money of KRW 200 million.

In addition, the defendant's defense counsel argues that there is a possibility that suicide, natural death, or fall in a place where the victim could not easily be found, but it does not lead to a reasonable doubt in light of the above expert statement of non-indicted 4 and the defendant's criminal behaviors.

jury verdict and sentencing opinion

1. A verdict of guilt or innocence;

Opinions of guilt: 9 persons

Opinions of innocence: Ten persons;

2. Opinions on sentencing

15 years: Three persons.

13 years of imprisonment: Six persons.

For more than one reason, this case against the defendant is judged as ordered through a participatory trial according to his wishes.

Judges Choi Dong-dong(Presiding Judge)