(영문) 대법원 2019.1.10.선고 2018도12374 판결

1. The conviction in a criminal trial ought to be based on evidence with probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is any doubt as to the defendant's guilt, it is inevitable to determine the defendant's benefit by means of indirect evidence without direct evidence, such as the crime of murder (see Supreme Court Decision 2005Do8675, Mar. 9, 2006). However, in a case where a statutory punishment is grave for a crime, such as murder, it is necessary to carefully determine indirect evidence that is closely related to the facts charged (see Supreme Court Decision 2007Do10754, Mar. 13, 2008). In order to acknowledge such conviction, indirect evidence should also be proven beyond a reasonable doubt. One of such indirect facts should not be contradictory and contradictory among them, and thus, should not be supported by logical and empirical rules and scientific rules (see Supreme Court Decision 2010Do1089, Oct. 19, 20109).

2. The facts charged in this case are as follows.

The Defendant, in the absence of certain income at the time and the debt amounting to KRW 80,00,000,000 for every month, has to pay KRW 1,000,000 to the interest of every month, but without any particular reason, she has received gambling money and living expenses, and she has received money and valuables against women.

On May 21, 2002, from around 23:20 to around 20:0 on May 21, 2002, the Defendant discovered the victim B (the 22 years of age), and prevented the victim from resisting by means of intimidation with deadly weapons, etc., and then deducted the victim from the victim a bank ordinary deposit passbook, C Bank installment savings passbook, identification card, seal, etc., and discovered the password of the above C Bank ordinary deposit passbook. On May 22, 2002, on around 12:18, 2002, the Defendant took out KRW 2960,00 from the ordinary deposit passbook of the victim, using the passbook of the victim’s common deposit located in D Bank Mo-gu, Busan, and then murdered the victim with the chest of the victim by taking advantage of the fact that the above crime was committed.

3. The court below affirmed the judgment of conviction of the court of first instance on the ground that there were no evidence to directly recognize the above facts charged, such as the defendant's method of crime, the victim's specific death circumstance, etc., but indirect facts and relevant circumstances acknowledged by the evidence duly adopted and investigated, namely, the defendant withdrawn his deposit with the victim's passbook, the defendant terminated his installment savings; E transferred Mabom with the defendant; the defendant was economically difficult at the time; and the defendant committed a crime under similar Acts and subordinate statutes. In full view of the above, the court below acknowledged that the fact of taking the victim's property by force and killing the victim was proven to the extent that it was beyond reasonable doubt, and that the arguments by the defendant and the defense counsel who raised various questions, such as the possibility of the crime by a third party, are not included in reasonable doubt.

In full view of the above circumstances acknowledged by the lower court, it is not unreasonable to make the original decision that found guilty of the above facts charged.

4. However, in light of the fact that a serious crime, such as the instant case, should be seriously careful in recognizing the conviction and should not keep the suspicion of a doctor in that process, it cannot be denied the judgment of the court below that there is an sworn question or a lack of examination as follows.

A. We examine the defendant's withdrawal of deposits with the victim's passbook and termination of the victim's installment savings.

This part, if credibility of the E’s statement, can be a flexible indirect evidence to acknowledge the facts charged of this case along with the E’s statement, but in itself, it is very insufficient to serve as an indirect evidence with regard to robbery, such as the facts charged of this case.

B. We examine the E’s statement that the Defendant moved Mamanom together with the Defendant.

(1) The lower court rejected the credibility of the E’s statement solely on the ground that there is credibility in the E’s statement and some inaccurate statements arising from the memory limits, and on the ground that there is no distortion and pollution in the initial statement that the E’s statement was transferred at the Defendant’s request, even though the investigation has been conducted, it gradually and specifically stated the place of the movement of Maternos, etc., the Defendant’s initial statement itself cannot be deemed to have distorted and polluted.

(2) In this case where there is no direct evidence that could have known that the Defendant murdered the victim, if the E requested by the Defendant at the time of the crime of this case moved to Mamanom similar to that where the body of the victim was abandoned, it would be a serious indirect evidence for the Defendant’s crime of this case. However, if the E’s statement is almost the only evidence for the murder of the Defendant, more strict evaluation is required.

(A) According to the judgment of the court below and the record, E is a statement to the effect that the defendant, being towed by a mastrue in a building, such as a mastrue warehouse, was carried out in a girst, such as a car, and was moved to a vehicle, and was in a place where a cement floor was installed, he was in motion with the defendant. After that, he was in motion, he was in a mastrue, and that he stated to the effect that he did not memory how he was in a mastrue and how he was in a mastru.

(B) If the Defendant was in weight to the extent that he could lead the Defendant, it would have been likely that the Defendant could have loaded and unloaded the Magman on the vehicle troke. There is a question as to whether the crime would have been committed at the risk of Magman’s danger and only with E’s help.

(다) E의 진술은 마대자루에서 물컹한 느낌이 들었다는 것뿐이고 마대자루의 내용물에 관한 구체적인 진술은 없으며, 마대자루를 자동차 트렁크에서 내린 후 피고인이 이를 어떻게 처리했는지에 관한 내용을 포함하고 있지도 않아 그 증거가치가 제한적인 한계도 있다.

(D) The first statement made by the court below that there was no distortion or pollution as well as the following questions. E is the same to the effect that the defendant living in the Seo-gu Busan Metropolitan City CSdong and the driver of the Mascar was not memoryed as the same person or the person driving the Mascar was the same as the police officer's repeated questions. The defendant made a statement that the defendant was not aware of the fact that he was not a co-offender of the body abandonment, and the police officer made a statement to the effect that he was asked to change the statement immediately to the effect that he was not an accomplice of the body abandonment, and attempted the defendant to carry the Masom in the above vehicle. Accordingly, the change did not result from the police officer's own defense to escape from the amsa or co-offender's relation. In addition, in light of the series of progress related to the Maslu stated by E, it appears that the Masai did not memory the how the defendant dealt with the Masom in the vehicle.

(3) The fact that it does not seem that there is an original relationship to make the Defendant, who was not a criminal, with the Defendant, as the offender, does not seem to have any high possibility of making the Defendant’s false statement in light of the various circumstances cited by the lower court, but even so, it is necessary to closely re-examine the Defendant by way of re-citing the E’s statement in order to clarify the above question points, etc.

C. We examine the judgment of the court below on the presumption of the victim's death.

(1) The court below held that among the reasons for the judgment, the part that "the defendant withdrawn the deposit in the victim's passbook" could be inferred that the defendant knew of the secret number by assaulting or threatening the victim when withdrawing the victim's deposit on May 22, 2002, but it is not ruled out that the possibility that the defendant had already died before the withdrawal of the deposit as above in the part that "a circumstance asserted by the defense counsel, such as the possibility of committing a crime by a third party, etc." cannot be ruled out, and that the time when the presumption of death was presumed as a new wall on May 22, 2002 as a result of autopsy by the victim.

The above determination by the court below is contradictory to whether the defendant was alive when the defendant withdraws the victim's deposit.

(2) The facts known by the record as to this part are as follows.

(A) The body examination report prepared by AB of the law affiliated with the other part of the National Institute of Scientific Investigation is written as the victim's death date and time of death on May 22, 2002.

(B) As to the fact-finding that the court below accepted the defendant's application, the Busan Science Investigation Agency stated the date and time of the victim's death as a new wall (presumed) on May 22, 2002 at present, the reason why the Busan Science Investigation Agency stated the date and time of the victim's death at the Busan Science Investigation Agency is not memory now. However, since this case appears to have been a perishable body, it is very difficult to presume the date and time of death in a perishable body, and it is reasonable to presume the date and time of death in accordance with the degree of corruption and the criminal administration presented by the investigator, and even this case arrives after the closing of the court below's argument.

(C) As a result of the autopsy of the body of the victim, the alcohol concentration was measured at 0.074% in the inter-sect and in the non-sected body.

(3) If so, the lower court should have deliberated on the following: the meaning of the date and time of death as stated in the written autopsy; the time of presumption of the victim’s death; the meaning of alcohol concentration from the victim’s autopsy; and the reasonable explanation of the victim’s presumption of death and alcohol concentration.

D. We examine the Defendant’s economic difficulties that served as the motive for the instant crime.

(1) In light of the fact that the Defendant did not have a certain occupation at the time of the instant case, and had been responsible for considerable debts, but had been able to lead a livelihood one day with card tin and card tin, and that the Defendant was in contact with other women at risk of causing the withdrawal of deposits from the victim, and at the risk of causing danger, terminated the victim’s installment savings and find money, the lower court determined that the Defendant’s economic difficulties at the time could sufficiently be seen as the motive for the instant crime.

(2) Generally, it cannot be denied that the opportunity for pecuniary gain can be an important motive for committing the crime of murder. However, it is somewhat doubtful whether the monetary gain only leads to the crime of murder, in light of the following facts revealed by the lower court’s judgment and the record, there is a little doubt as to whether the Defendant had economic difficulty to the extent that he/she would have to escape from murder even if he/she attempted to escape from murder even through a very imminent economic difficulty or extreme method, such as murder, in light of the fact that the Defendant is extremely imminent (see, e.g., Supreme Court Decision 2017Do1549, May 30, 2017).

(A) The Defendant, at the prosecutor’s office, issued a card when he/she carries a company at the time he/she was a member of the department store card tin, obtained a credit card loan, and retired from the company after receiving another loan, and stated to the effect that the loan was not sufficient, and that the loan was not sufficient. (B) Meanwhile, from the Defendant’s credit information received from the Defendant’s bank account, the amount registered as the Defendant’s loan transaction information around the instant case was KRW 1.5 million, and the amount registered as the Defendant’s non-performance information was KRW 12.8 million. The Defendant appears to have delayed payment of part of the credit card price at the time, but until around the instant case, the Defendant deposited the cash into the account in which the payment was made, and the amount of the cash service received from the ED card or DS card was not verified as the amount of the Defendant’s loan to be withdrawn from the Defendant’s bank account to the extent of KRW 40,2200,000.

(4) Although it is difficult to view that the amount of loans worth KRW 700-80,000 that the Defendant voluntarily stated was false, the lower court should have examined whether there was the motive for the instant crime by gathering more objective data and ascertaining the amount of loans by the Defendant, and whether the lending financial institutions, etc. were urged the Defendant to pay the loans at the time, and whether there was the motive for the instant crime, and if so, whether there was an economic difficulty or old-age situation to the extent that the Defendant would have to escape from murder even if he/she had the intent to have the motive for murder, and whether there was sufficient motive to murder with deadly weapons.

E. We examine the judgment of the court below on the possibility of committing a crime by a third party.

(1) The lower court determined that, solely on the sole basis of the circumstance in which a person brought a serious danger to DH, the Defendant could not be dismissed without permission for an indirect fact that deemed the Defendant as a criminal, due to the fact that the period of his / her influence has expired.

(2) According to the judgment below and the record, after the discovery of the victim’s body, DH made a false statement as to his behavior, whether the victim was made telephone call, and whether the victim was met at the early investigation at the time of the instant case. Unlike the victim’s transfer of disappearance, the victim did not contact the victim thereafter. Unlike the previous conviction, the victim did not use the cell phone and the Internet for 39 hours at the time of the victim’s disappearance, and there was a special robbery.

(3) Although the judgment of the court below on this part cannot be deemed to have been made grossly erroneous, it is argued that the defendant only withdrawn the bank account with the victim's deposit passbook, identification card, etc., and did not commit a crime as stated in the facts charged. As seen earlier, in the instant case where there is no direct evidence by which the defendant's method of committing a crime and the victim's specific reason of death can be known, the defendant was expressed as a flexible suspect until the video withdrawal of the victim's deposit at the investigation stage is confirmed, and it seems that the foregoing unexplodeded Doz requires more active examination of evidence. In addition, it is also pointed out that a third party, other than the defendant, has received to the Supreme Court the mail with the content of the crime of this case, and thus, it is also necessary to review whether additional deliberation is necessary.

F. Therefore, the lower court should not be readily concluded that the Defendant committed the instant crime solely with indirect evidence and indirect facts as indicated in its holding, to the extent that there is no reasonable doubt as to the fact that the Defendant had committed the instant crime, but should have sufficiently deliberated closely on various questions as seen earlier, and even if such circumstances were to be considered, the Defendant should have been convicted of committing the instant crime only when he/she is found guilty of committing the instant crime. However, the lower court did not reach such determination and did not err by misapprehending the legal doctrine on the probative value of evidence for the admission of guilt, thereby failing to exhaust all necessary deliberations, and thereby adversely affecting the conclusion of the judgment.

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.