2017No373 Indecent Act by compulsion

A,

Prosecutor

Manana (Filing of Prosecutions), milk, or public trial

Attorney R (Korean National Assembly)

Chuncheon District Court Decision 2016Gohap621 Decided April 21, 2017

November 8, 2017

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

The judgment of the court below which acquitted the defendant of the facts charged of this case despite the credibility of the victim's statement who designated the defendant as an offender, is erroneous in the misapprehension of facts, which affected the conclusion of

2. Determination

A. Relevant legal principles

The finding of guilt in a criminal trial shall be based on evidence with probative value, which can lead the judge to feel true in the facts charged to the extent that there is no reasonable doubt, and if there is no such proof, even if there is no doubt of guilt, it may not be judged guilty. Furthermore, in light of the fact that the criminal appellate trial is in the nature of a post facto conviction even though it is in the face of the criminal trial, and the spirit of substantial direct and psychological principle as prescribed by the Criminal Procedure Act, etc., in a case where the first instance court acquitted the defendant of the facts charged on the ground that there is insufficient evidence to exclude reasonable doubt after undergoing the examination of evidence, such as examination of witness, even if the first instance court may raise a probability or doubt about the facts partially opposite to the result of the appellate trial, if the first instance court does not reach the extent that it can sufficiently resolve the reasonable doubt that it is insufficient to prove a crime, such circumstance alone does not necessarily lead to the conclusion that there is an error in the misunderstanding of facts in the judgment of the first instance court (see, e.g., Supreme Court Decision 2015Do8610).

(b) judgment;

1) Facts of injury

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below: (i) the victim made a very specific and detailed statement about the damage situation at the time, including the location of the victim, the situation before and after the victim, and the response to the surrounding area; (ii) the major contents of the statement concerning the damage facts themselves at the time do not seem to be contradictory or unreasonable; (iii) the victim maintains consistency in the statement from the investigative agency to the court of the court of the court below even though the victim made several statements from the investigative agency to the court of the court of the court below; and (iv) there is no reason to make the victim make a false statement, it seems that the victim's statement about the damage facts itself is credibility. Therefore, the

2) Determination as to the credibility of the victim's statement indicating the defendant as the offender

Other evidence submitted by the prosecutor is limited to circumstantial evidence insufficient to prove the facts of crime, and the victim's speech at the present site did not directly witness the facts of crime. However, it is merely a statement to the effect that he heard the victim's speech who became a nearby defendant and perceived the defendant as a criminal offender, and thus, the credibility in the statement that the victim designated the defendant as a criminal offender depends on whether the charges of this case are established or not.

However, as the court below properly explained, there are many doubtful circumstances for the accuracy of the statements made by the victim who designated the defendant as a criminal. In other words, the defendant was in active conversations between his wife and K at the time, and a number of men including those similar to the defendant's appearance with respect to the situation or location where the indecent act was committed, and the statement about the situation or location of the indecent act is somewhat unclear. In light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, the evidence submitted by the prosecutor alone cannot sufficiently resolve the reasonable judgment of the court below. Accordingly, the judgment of the court below which acquitted the defendant of the facts charged in this case is just and there is no illegality of mistake of facts as asserted by the prosecutor.

① In light of the victim’s statement in the lower court’s legal statement, the victim was unable to directly witness the criminal situation, taking into account surrounding circumstances and the location of the Defendant at the time of the occurrence of the crime, and appears to have been identified as the offender. However, as the lower court properly explained, since a number of men, other than the Defendant, including a man who is similar in terms of the appearance of the Defendant and the appearance of the Defendant, including a man, are verified through CCTV images, the possibility that other persons other than the Defendant left the crime cannot be ruled out.

② In light of the fact that the victim reported, at the time of the lower court’s determination, a person who is similar to the Defendant boarding the subway, and the victim stated that he was an offender, the victim’s memory may be somewhat denied and clear, and may be shaken at the time of cancer. Thus, the victim’s memory may be determined by mistake, even at the time of the determination of the Defendant at the scene, by mistake, that a person who is under circumstances suspected of partially

③ According to the victim’s statement, the victim took place by the end of the end of the day that 2 male people except the victim had observed and judged the criminal situation at the time of the victim’s occurrence of damage. In the situation where the victim made a statement to the effect that other strings consider it, it is somewhat natural that the defendant given and received K message without any particular response.

④ As above, insofar as the victim’s first criminal category itself is likely to be inaccurate, it is difficult to readily conclude that the Defendant is a true criminal solely based on the circumstances alleged by the prosecutor.

⑤ The victim states the Defendant as a criminal offender in an investigative agency. The victim’s statement alone does not constitute an investigation by classifying the part of the victim’s witness, the part that he/she observed, the pipe, and the description of the offender, etc. into specific causes, but merely listen to the victim’s overall statement of damage in the situation where the victim is leading the Defendant to the criminal offender. Therefore, it is difficult to readily conclude that the Defendant is a criminal offender solely based on such statement.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The regular meeting (Presiding Judge)

For static purposes

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