Defendant

Defendant

For stuffing

Attorney Dog-ho (Korean)

Busan District Court Decision 2006Gohap712 Decided February 2, 2007

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

Although the Defendant did not rape the victim at all, the lower court found the Defendant guilty of the facts charged on the basis of the victim’s statement with no credibility.

2. Determination

A. Summary of the facts charged

On February 13, 2004, the defendant is a person who was released on September 30, 2005 and was released on September 16, 2005 and for whom the remaining term of punishment has elapsed; and

On August 3, 2006, around 11:20 years of age, the victim Nonindicted Party 1 (nive, 9 years of age) who was in the Dongcheon-dong (hereinafter omitted) located in Busan-dong, Busan-dong (hereinafter omitted), intruded into the house through an unlocked gate, discovered the victim who was seated in a small room room and was in a computer game, thought the victim to rape the victim, and ask the victim at any place other than the victim's house, and confirmed that there was no room for the victim's hand, leading the victim's hand to the room, put the victim into a forced place on the t lease, leading the victim's hand on the room of the room. The victim was deprived of the victim's body and the panty pathm ma, "the victim was spath, spath ma," and the victim was forced to go off with the victim's body, and then the victim was forced to rape the victim's sexual organ by inserting the victim's part, and caused 2 the victim's pressure.

B. Defendant’s assertion

The Defendant consistently asserts that it is unreasonable to find the Defendant guilty of the facts charged solely with the victim’s statement in the absence of objective evidence, such as fingerprint and semen, inasmuch as it is consistent to the investigation agency, the lower court, and the lower court, and the lower court, and the Defendant did not know the location of the victim’s house as well as the location of the victim’s house.

C. The judgment of the court below

The court below found the victim’s mother’s statements, the contents of the victim’s statements, the diagnosis report, and his body image, etc. recorded in Nonindicted 2’s legal statement, the victim’s statement recorded in the statement recorded in the statement recorded in the CD, and the Defendant’s criminal records (the confirmation report on the date of release) as evidence, and found the Defendant guilty of the facts charged in the instant case.

D. The judgment of this Court

(1) Issues

In this case where the defendant denies the facts of the crime, the remaining evidence, excluding the statement made by the victim's investigative agency recorded in the statement recorded in the statement recorded in the victim's investigative agency, among the evidence submitted by the prosecutor, is related to the fact that the victim was raped from a male who appears at least 40 times at the victim's home at the time of the time stated in the facts charged and the victim was identified as a criminal of sexual assault crime against the defendant, and that the defendant did not directly prove that he was the criminal of the rape crime of this case, and only the above victim's statement was the only direct evidence, and thus, the credibility of

(2) The reason why the victim, as recorded in the record, was identified as the criminal defendant

피해자는 사건 당일인 2006. 8. 3. 부산 연제구 거제동에 있는 부산의료원 내 부산여성·학교폭력 피해자 원스톱지원센터에서 피해 경위를 진술하면서 범인의 인상착의에 관하여 “범인의 얼굴은 넓적하고 사각형(턱을 가리키며)이고, 흑인만큼은 아니지만 지나가면 표가 날 정도로 얼굴과 팔 등이 검은 편이었으며, 눈은 조금 작고 쌍꺼풀이 있었으며, 눈과 이마에 주름이 있었고, 머리는 짧았으나 단정하지는 않았으며, 옷은 회색 반팔 면티에 긴청바지를 입고 있었고, 신장은 피해자의 어머니(163㎝) 정도로 작았으며, 체격은 뚱뚱해 보였고, 나이는 피해자의 아버지(42세)보다 많아 보였으며 얼굴에 점은 없었다”고 진술하였다. 탐문 수사를 하던 경찰은 사건 발생 4～5일 후에 용의자 인적사항을 확보하기 위해 피해자에게 ‘수법영상시스템’을 활용하여 300여명을 확인하게 하였으나, 용의자를 발견하지 못하였고, 그 후 피해자가 이 사건으로 인한 정신적 충격을 이유로 경찰서에 출석하여 용의자 사진 확인하는 것을 거부하자, 경찰은 위 공소외 2가 의심한 중부산 케이블방송 동구점 직원들과 피고인을 비롯한 부산동부경찰서 관내 성폭력 우범자 총 47명의 주민등록 화상사진을 컴퓨터휴대용 저장장치(USB)에 저장한 후, 2006. 8. 28. 12:30 무렵 피해자 집에서 위 공소외 2 입회 아래 컴퓨터 화면을 통해 피해자를 상대로 확인하게 하였는데, 피해자가 “피고인의 사진이 범인과 아주 많이 닮았다”고 진술하자, 경찰은 부산지방법원으로부터 피고인에 대한 체포영장을 발부받아 연고지 및 배회처를 상대로 수사하던 중 2006. 10. 11. 23:15 무렵 부산 동구 초량3동 1200-4에 있는 신풍빌딩 4층 부산역 고시텔 13호실 내에서 피고인을 체포하여 범행을 추궁하였으나, 범행 일체를 부인하여 피고인을 상대로 진술조서 작성 후, 피고인 동의 아래 자연스러운 모습을 비디오카메라로 촬영하여 2006. 10. 12. 07:30 무렵 피해자의 집에서 위 공소외 2 입회 아래 피해자에게 확인하게 하자, 피해자가 “피고인이 자신에게 피해를 입혔던 범인이 맞다”고 진술하였고, 그 직후인 같은 날 아침 무렵 부산동부경찰서 숙직실에서, 유리를 통해 피해자만 피고인의 얼굴을 볼 수 있는 상태에서 혼자 있는 피고인이 범인인지 여부를 확인하게 하여 피해자가 “범인이 맞다”고 하자, 이를 비디오로 녹화하기 위하여 같은 날 08:10 무렵 범인식별실에 피고인을 포함하여 평복을 입은 3명을 의자에 동시에 앉힌 상태에서, 공소외 2 입회 아래 피해자로 하여금 피해자만 피고인을 볼 수 있는 특수유리를 통해 범인 여부를 확인하게 하자, 피해자는 “피고인이 범인이 맞다”고 진술하였다.

(3) Whether the victim's statement was reliable

(A) In the criminal identification procedure based on the appearance, etc. of the suspect, it shall be deemed that the witness’s statement in such method can be deemed that the credibility of the witness’s statement is low unless there are additional circumstances such as the suspect’s oral appearance or appearance of the suspect as well as the victim’s statement, whether there is any other circumstance to suspect the suspect as the offender (see Supreme Court Decision 2000Do4946, Feb. 9, 2001). In order to enhance the credibility of witness’s statement in the criminal identification procedure, it shall be deemed that the witness’s statement should be made in advance so that the witness’s statement or the suspect’s photograph may be presented to the suspect as the offender under the limit, inaccurate and detailed circumstances, and that there is a possibility that the suspect or the suspect’s photograph may be suspected of being the offender. In addition, the witness’s statement should be compared with the witness’s statement in advance to the witness’s appearance or the witness’s appearance, and it shall be compared with the witness’s statement in detail with the witness’s statement.

(B) As seen earlier, the statement that the victim called the defendant as the criminal in the criminal identification procedure via special glass was made by the method of identifying the criminal at the same time with three persons, including the defendant, but the victim had the victim show the victim the image of the defendant only and confirm whether the criminal was the criminal, and again, the victim made the victim confirm whether the criminal was the criminal. As such, the victim's statement that the defendant called the defendant as the criminal did not properly observe the procedure to enhance credibility in the criminal identification procedure. Furthermore, if 40 days prior to the above criminal identification procedure 40 days prior to the above criminal identification procedure, the victim became the defendant as the person who was a criminal more similar to the victim among the photograph of the suspect of several heads, not by the actual experience and memory of the criminal, but by considering that the victim was in line with the criminal's photograph, and thus, it cannot be ruled out that the victim was the criminal in direct face-to-face situation of the defendant.

(C) Furthermore, around 25 days from the date of the occurrence of the case, the victim stated that many of the suspects were similar to those of the defendant's photograph from among the suspect's pictures, but this is not based on the physical characteristics or special appearance of the defendant, but rather, the victim stated on the day of the case that the victim's face and arms were above the face of the suspect's face. If the victim's photograph was presented, it cannot be viewed that the face of the defendant's face and arms were equal to that of the victim's statement, and there is no evidence to recognize that the victim's face and arms were very biased as the victim's statement at the time of the crime, and thus, it is unclear whether the victim's photograph was identical to the victim's face and clothes presented as the suspect's appearance. In addition, it is not clear that the victim could not be seen as the victim's body because of the victim's lack of sufficient mental desire to identify the suspect's photograph on the day of the crime.

(D) It constitutes exceptional cases where it is deemed that a false witness testimony itself is sufficient to exclude a reasonable doubt. However, in the instant case where there are no additional circumstances such as whether a person who has previously been aware of the victim or a person who has been aware of the victim, in addition to the victim’s statement, there are other circumstances to suspect the defendant as a criminal offender, the victim’s statement that the defendant designated the defendant as a criminal offender has the possibility of various errors arising during the land category process as seen earlier, and its credibility is low.

(4) Sub-determination

The burden of proof for the facts charged in a criminal trial shall be borne by a public prosecutor, and the conviction shall be based on the evidence with probative value that leads a judge to have the truth that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, the interest of the defendant should be determined even if there is any doubt about the defendant's guilt. If there is no such evidence, the victim's statement, which is a direct evidence of the facts charged in this case, is below the credibility as seen earlier, the remainder of the evidence submitted by the public prosecutor is insufficient to acknowledge the facts charged, and there is no other evidence to prove the facts charged, and it is obvious that the court below accepted the victim's statement, etc. and found the defendant guilty of the facts charged in this case was erroneous in finding facts contrary to the rules of evidence, which affected the conclusion of the

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The facts charged in the instant case are as indicated in Article 2-1(a) of the Criminal Procedure Act. As such, the facts charged constitute a case where there is no proof of crime as seen above, and thus, the Defendant shall be acquitted pursuant to the latter part of Article 325

Judges Cho Jong-soo (Presiding Judge)