(State)Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.), abandonment of a corpse, damage to a corpse;

2012Electric No. 11 (Consolidated) Orders to attach an electronic device

A

Both parties

Cho Sung-sung (Court of Second Instance) and Lee In-bok (Court of Second Instance)

Attorney (National Ship)

Jeju District Court Decision 2012 Gohap227, 2012 Jeon Jong15 (Joint Judgment) Decided November 20, 2012

February 6, 2013

All appeals filed by the defendant and the person subject to the attachment order and the prosecutor are dismissed.

1. Summary of grounds for appeal;

(a) The defendant and the person to whom the attachment order is requested (hereinafter referred to as the "defendant");

1) misunderstanding of facts or misapprehension of legal principles

Defendant did not intend to rape the victim at the time of committing the instant crime, but only recognized the attempted rape by a police officer’s meeting during the investigation process. However, the lower court recognized the Defendant’s attempted rape based on L, M’s prosecutor’s office, and each of the statements in the lower court, which did not have credibility, without any record of the first written protocol of interrogation of the suspect by the prosecution of the Defendant, and M’s prosecutor’s office and the lower court’s court. In so doing, the lower court erred by misapprehending the legal doctrine on the crime of rape or by misapprehending the legal doctrine on the

Furthermore, in order to find the defendant guilty of having attempted to rape the victim, the court below found the defendant guilty of this without supporting evidence, although the defendant needs to provide evidence in addition to the confession made by the investigative agency. In this regard, the court below erred by misunderstanding of facts or misunderstanding of legal principles.

2) Unreasonable sentencing

Taking into account all circumstances such as the fact that the defendant was mistaken for the victim as a sexual indecent act during the period of repeated crime and reported to the police, murdered the victim contingently, and that the defendant is pening the mistake, the punishment of the court below is too unreasonable.

(b) Prosecutors;

Considering the following circumstances: (a) the Defendant committed the instant crime in a planned manner; (b) not only is the Defendant committed such crime; (c) the Defendant abandons and destroys the victim’s dead body to conceal the crime after murdering the victim; and (d) the Defendant has not yet seriously reflected; and (c) the Defendant has not been able to recover from damage to the victim’s bereaved family members, the sentence of the lower court is too unreasonable.

2. Determination

A. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

Comprehensively taking account of the following circumstances acknowledged by the evidence duly examined and adopted by the court below, the defendant's criminal intent to commit rape against the victim, such as the facts charged in this case, can be recognized, and thus, the other defendant's misconception of facts or misapprehension of legal principles is without merit.

1) With regard to whether the defendant tried to rape the victim at the time of committing the crime of this case, the defendant denied the crime of attempted rape during the first or sixth interrogation of the police, but the defendant stated the first interrogation of the suspect after the confession of the crime of this case during the seventh interrogation to the prosecution, and again denies the crime of this case from the second to the trial of the suspect. The statement of the first interrogation protocol of the prosecutor's office containing the confession statement about the crime of attempted rape of the defendant in this case is not only specific and detailed as the court below properly states, but also objective rationality as to the circumstances leading the victim to rape, and it is difficult for the defendant to kill the victim at the time of committing the crime of this case. As such, since the defendant tried to kill the victim at any time, the place of the crime of this case was just side of the first interrogation of the suspect, it is difficult for the court below to find the defendant guilty of sexual intercourse with the victim as a place where the defendant did not have sexual intercourse with another victim under his own influence, it does not appear that the defendant did not have sexual intercourse with the victim.

2) As to the grounds why the Defendant led to the confession of the attempted rape at the time of the 7th interrogation of the suspect and the first interrogation of the prosecution, the Defendant appears to the effect that the confession of the attempted rape was expected to be considered as favorable reasons for sentencing and led to a false confession, depending on the police officer’s meeting using public opinion and the sentiment of his bereaved family members at the time of the interrogation of the suspect. However, this is difficult to believe in light of the degree of punishment expected due to the confession at the first interrogation of the suspect under the prosecution, the Defendant’s age and intelligence, and the record of the crime, etc., and rather, the Defendant seems to have led to the confession of the crime by considering the degree of punishment expected due to the confession at the first interrogation of the suspect under the prosecution, the Defendant’s age and intelligence,

3) 피고인에 대한 검찰 제1회 피의자신문조서의 진술기재는, 이하에서 보는 바와 같이 증거능력과 증명력을 구비한 L, M의 검찰 및 원심 법정에서의 각 진술내용과도 부합하는 것으로서 그 신빙성이 충분히 구비되었다고 판단된다. 오히려 검찰 제2회 피의자신문 이후로 강간미수 범행에 관한 종전 자백을 번복하고 위 범행을 부인하는 피고인의 진술은, 피고인이 피해자의 목을 졸라 사망에 이르게 한 과정에 관하여 일관성이 없고 쉽사리 신빙하기 어려운 내용의 진술을 담고 있을 뿐 아니라 [피고인은 검찰 제2회 피의자신문에서 피고인이 이 사건 범행 당시 넘어져 있는 피해자의 배 위에 올라탔으나 피해자의 입을 막은 바 없고, 그 과정에서 피해자가 소리도 지르지 않고 침착하게 피고인과 대화를 주고받았다는 취지로 진술하였으나(증거기록 제3책, 이하 같다. 제1048-1049면), 이는 검찰 제1회 피의자신문 당시 피고인이 피해자가 소리를 질러 손으로 피해자의 입을 막으려고 하였고 이에 피해자가 바닥에 넘어진 상태에서 피고인의 손을 할퀴고 가슴을 치는 등 피고인에게 반항하였다고 진술한 내용(제1032-1033면) 내지 검찰 제3회 피의자신문 및 검찰 제6회 피의자신문 당시 피고인이 피해자가 반항하는 과정에서 손톱으로 피고인의 손가락 부분을 할퀴었다고 진술한 내용(제1065, 1154면)과도 정면으로 배치되고, 그 자체로 보더라도 이 사건 범행과 같은 상황에 놓이게 되었을 때 피해자가 보이게 될 반응으로 상정하기 어렵다. 피고인이 피해자의 상의를 벗긴 경위에 관하여도 일관성이 없는 점[피고인은 검찰 제2회 피의자신문에서는 피해자의 시신을 옮기는 과정에서 피해자의 상의가 벗겨지기에 커터 칼로 상의를 잘라서 입히려고 하였으나 잘 입혀지지 않아 상의를 다 벗긴 것이라고 진술하다가(제1051-1052면), 검찰 제5회 피의자신문에서는 피해자의 상의를 커터칼로 찢어 벗겼다는 취지로 진술하였고(제1126, 1127, 1128면), 그 후 검찰 제6회 피의자 신문에서는 피해자의 시신을 옮기는 과정에서 상의가 일부 벗겨져 커터칼로 상의를 잘라서 가지고 나왔다는 취지로 진술하였다가(제1155면), 피해자의 시신을 옮기는 과정에서 피해자의 상의가 완전히 벗겨졌고 이에 상의를 커터칼로 잘라서 입혀보려고 하였으나 입히지 못하게 되자 이를 가지고 가게 되었다고 진술을 다시 번복하였고(제1156면), 원심 법정에서는 피해자의 시신을 옮기는 과정에서 상의 한쪽 팔부분이 거의 벗겨졌고 이에 키터칼로 피해자의 상의를 잘라 다시 입히려고 하였는데 잘 되지 않아서 1-2m 옮기는 과정에서 옷이 완전히 벗겨졌던 것 같고, 피해자의 시신을 완전히 옮긴 후 기어 나오다가 대나무 사이에 있는 상의가 손에 잡혔다고 진술하였으며(공판기록 제305-306면), 당심에 이르러서는 피해자의 시신을 옮기는 과정에서 상의가 일부만 벗겨졌다고 진술하는 등 피해자의 상의를 벗기고 이를 처리한 경위에 대해 제대로 설명하지 못하고 오히려 이에 관한 추궁이 있을 때마다 그 답변의 내용을 바꾸고 있다] 등에 비추어 이를 신빙하기 어렵다.

4) Each of the statements at the prosecution of L and M and at the court of original instance are statements made by a third party, the contents of which are the defendant's statement, and in order to recognize admissibility of evidence, it should be recognized pursuant to Article 316 (1) of the Criminal Procedure Act that the statement was made under particularly reliable circumstances pursuant to Article 316 (1) of the Criminal Procedure Act. However, each of the statements made by L and M at the prosecution and the court of original instance with respect to the crime of this case is based on the defendant's prior deliberation from the defendant at the time when they are confined to the detention room at the Jeju Dong-dong Police Station around July 2012. The main contents of the statements made by L and M are mutually consistent with each other at the investigative agency and the court of original instance. In particular, the statement about the circumstance in which the defendant attempted to commit rape of the victim is about to be committed is not only consistent with the statement made by the defendant during the first interrogation process at the prosecution, the occupation of victim whose identity cannot be known from the defendant, or the defendant's testimony at the prosecution's office's office's discretion and admissibility of M.

5) Each statement, N,O, P, and G police statements and physical parts of the police in L, M's prosecutor's office and court of original instance are found, and the investigation report(s) are deemed sufficient to be corroborated evidence to the extent that all the confessions of the defendant are not processed, but consistent with the truth.

B. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

In addition, the defendant and the prosecutor's assertion of unfair sentencing, the crime of this case also committed the crime of this case without reflection of the fact that the defendant committed the crime of this case within the period of repeated crime, and committed violence and intimidation against the victim in the process of getting off the victim's cell phone for minor reason, and suppressing resistance against the victim, and abandons part of the victim's body after abandoning the victim's body, and then destroying and damaging part of the body of the body of the investigative agency whose death is narrow, the crime of this case and the crime of this case are not very poor, and there is a result that the defendant's infringement of the victim's most severe mental shock and slickness to his bereaved family members, and that the defendant did not go against the punishment force due to the crime of special robbery, and again committed the crime of this case within the period of repeated crime, and that the defendant did not recover from harm until the court below's judgment, even though the result of death was caused by the death of the victim, and the defendant did not take into account the defendant's opinion that the defendant did not have sexual intercourse with the defendant's opinion more favorable punishment than the defendant's punishment.

C. Part of the attachment order case

When a defendant and a prosecutor have lodged an appeal against a prosecuted case, it is deemed that an appeal has been filed against a case of issuing an order to attach an electronic device pursuant to Article 9(8) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders. However, the defendant and the prosecutor did not assert any grounds for appeal regarding the case of issuing an attachment order in the petition of appeal or the statement of grounds of appeal, and even if examining the judgment below, there is no ground to investigate

3. Conclusion

Therefore, since the appeal by the defendant and the prosecutor is without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act and Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders. It is so decided as per Disposition.

Senior Judge of the presiding judge;

Judges Lee Yong-woo

Judges Kim Gon