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The judgment of the court below is reversed.
The prosecution of this case is dismissed.
Reasons
1. The summary of the grounds for appeal (misunderstanding of legal principles and mistake of facts) each police statement against the victim and the expert evidence based on the victim’s statement are as follows. Since the victim is residing in a foreign country and the prosecutor’s office took all measures to have the victim attend and make statements in the official ruling, the admissibility of evidence should be recognized in accordance with Article 314 of the Criminal Procedure Act or Article 316 of the Criminal Procedure Act, and the judgment based thereon should be made.
Nevertheless, the court below found the defendant not guilty of the facts charged in this case without recognizing the admissibility of evidence of each police statement and the expert evidence based on the victim's statement against the victim. It erred by misunderstanding legal principles and misunderstanding of facts.
2. Determination
A. Determination on admissibility of evidence 1) In order to recognize admissibility of evidence under Article 314 of the Criminal Procedure Act, where a person who made a statement by a person other than the defendant, such as a witness statement, was not proven by the statement made in court by the person who made the statement, the document must be proven to have been made under particularly reliable circumstances when the person who made the statement was unable to appear and make a statement in the official ruling due to his/her death, unknown whereabouts in a foreign country or other similar reasons, and the preparation of the document was made under particularly reliable circumstances.
Here, “foreign residence” is insufficient solely for a person requiring a statement to be made in a foreign country. In the course of an investigation, the investigative agency conducted a statement to confirm whether he/she resides in the foreign country and the possibility of departure from the country. If it is probable that a person who made a statement could not attend and make a statement in the future on the grounds that he/she stays in a foreign country or leaves the near future for a long time and stays in a foreign country, the contact with the person who made the statement will be confirmed in advance, and if there is a plan to temporarily return to Korea