2015Do7423 Indecent Act by compulsion

A

Defendant

Law Firm B

Attorney T, U, C

Seoul Central District Court Decision 2014Do4706 Decided May 1, 2015

November 12, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Regarding the credibility of the victim's statement

1) In determining the credibility of the statements made by the victim, etc. supporting the facts charged, the court shall assess the credibility of the statements, as well as whether the contents of the statements themselves conform to the rationality, logic, contradiction, or rule of experience, or conforms to the statements made by a third party, as well as whether the statements made by the victim, etc., in the witness examination protocol, including the appearance and attitude of the witness who is going to the public in the presence of a judge, and the penance of the statements made by the witness in the witness examination protocol, which is difficult to record, after being swornly taken an oath before a judge, considering all the circumstances that make it difficult to record. In a case where the statements made by the victim, etc., including the victim, are mutually consistent and consistent with the facts charged, they shall not be rejected without permission, unless there is any separate evidence to deem the credibility of the statements made by the witness objectively and objectively (see, e.g., Supreme Court Decision 20

2) The lower court convicted the victim of the charges of indecent act by compulsion on the ground that the victim’s statement was reliable on the grounds of the circumstances indicated in its reasoning, including the consistency of the victim’s statement.

3) Examining the records in light of the aforementioned legal principles, the above determination by the court below is justifiable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles regarding the determination of credibility of the victim’s statement, or by exceeding the bounds of the principle

B. As to the admissibility and reliability of the recording record

1) Even if a private person recorded a recording of the contents of conversation with the Defendant by the other party to a conversation, such recording file or a recording recording recorded based on the recording cannot be considered inadmissible as evidence illegally collected (see, e.g., Supreme Court Decision 2003Do3299, Jan. 14, 2005). In light of the records, the court below acknowledged admissibility and credibility of the recording recording of this case made on the basis of the recording file that was recorded with the Defendant immediately after the crime of this case was committed by the victim.

The judgment is just, and contrary to the allegations in the grounds of appeal, there is no error in the misapprehension of legal principles as to admissibility and credibility of recording records.

2) The Supreme Court precedents cited in the grounds of appeal are inappropriate to be invoked in the instant case, since they differ from the instant case.

2. As to the ground of appeal No. 2, in a criminal trial, whether to adopt the application for examination of evidence belongs to the court’s discretion, and as such, the court may not investigate the evidence requested by the defendant or defense counsel when it deems it unnecessary (see, e.g., Supreme Court Decision 2011Do10539, Nov. 10, 201). Thus, even if the court below did not examine the evidence of the witness requested by the defense counsel, it cannot be said that there was an error of incomplete deliberation, contrary

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Kim Yong-deok

Chief Justice Park Jong-young

Justices Kim Jae-han