[1] The degree of probative value of evidence for conviction in a criminal trial and its probative value of indirect evidence

[2] The case reversing the judgment of the court below which found the defendant guilty of the intentional sinking of a ship where a fire occurred, on the ground that there was an error of misconception of facts against the rules of evidence

[1] In a criminal trial, the conviction of guilt must be based on evidence of probative value, which leads to the judge to feel true beyond a reasonable doubt. If there is no evidence to form such a conviction, even if there is doubt about the defendant's guilt, it should be determined as the benefit of the defendant. However, such doubt does not necessarily necessarily require formation by direct evidence, unless it violates the rules of experience and logic, it can be formed by indirect evidence. Even if indirect evidence does not have full probative value as to the crime, it can be a comprehensive probative value that is not independent if a comprehensive examination is made in relation to the whole evidence, and in such a case, it can be recognized as a crime.

[2] The case reversing the judgment of the court below which found guilty of the intentional sinking of a ship where a fire occurred, on the ground that there was an error of misconception of facts against the rules of evidence

[1] Article 308 of the Criminal Procedure Act / [2] Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 92Do3327 delivered on March 23, 1993 (Gong1993Sang, 133), Supreme Court Decision 99Do3273 delivered on October 22, 1999 (Gong1999Ha, 2457), Supreme Court Decision 2000Do3307 delivered on October 24, 200 (Gong200Ha, 2473)

Defendant

Defendant

Law Firm Sejong, Attorneys Choi Jong-soo et al.

Busan District Court Decision 99No2012 delivered on May 18, 2000

The conviction part of the judgment below is reversed, and that part of the case is remanded to Busan District Court Panel Division.

We examine the grounds of appeal.

1. As to the damage to property

A. The summary of the facts charged is that the Defendant, as the captain of the deep-sea fishing vessel (35.68 tons; hereinafter referred to as the “fishing vessel of this case”) belonging to Nonindicted Co., Ltd. (hereinafter referred to as the “Nonindicted Co., Ltd.”), opened a 10:0 tons of the vessel’s deep-sea fishing vessel on July 29, 1998 (in the case of local time, 21:20 tons of Korean time; hereinafter referred to as the “local time”) and evacuated to the deep-sea fishing vessel’s 201 ton of the vessel under request for rescue at 10:30 on the same day (hereinafter referred to as the “friendly fishing vessel’s 201 ton of the vessel of this case’s 10:00 tons of the vessel of this case’s 1:00 tons of the vessel of this case’s divers, such as sinking the vessel of this case’s engine and steering house, etc., so it is impossible for the Defendant to receive the vessel of this case’s 301.

B. As to this, the Defendant: (a) evacuated with the crew of the instant fishing vessel as a well-fresh with a fire-fighting with the head of the instant fishing vessel and the first engineer at around 11:00 after a fire occurred at around 09:20; (b) however, at around 11:0, the Defendant had a fresh with the head of the instant fishing vessel and the first engineer; (c) however, this was examined the possibility of extinguishing fire, damage situations, possibility of vessel structure, etc.; and (d) consistent with the facts charged, the Defendant consistently denied that the instant fishing vessel was not intentionally sunken with the head of the Nog

C. The judgment of the court below

The court below, based on the employed evidence

① 화재가 선실 등 선수에서만 진행되고 기관실 등으로 확산되지 않아 소화전을 사용하고 선원들을 지휘하는 등 화재진압을 위하여 적극적인 조치를 취하였으면 이 사건 어선이 침몰할 가능성이 없음에도 이러한 조치를 취하지 아니하고 다른 선원들을 선박에 남겨둔 채 제일 먼저 구명정에 뛰어 내리는 등 화재진압에 무관심했던 피고인이 우양호에 구조된 이후 새삼스럽게 화재를 진압하기 위하여 다시 이 사건 선박으로 넘어간다는 것은 극히 이례적인 점, ② 피고인은 선수 부분의 화재를 진압한다는 명분으로 다시 이 사건 어선으로 넘어가면서도 선미 부분에 위치한 기관실의 구조를 잘 아는 정익주와 이학춘을 대동하였을 뿐만 아니라, 평소 사이가 극히 좋지 않았던 피고인과 정익주가 이 사건 선박침몰 이후 갑자기 친밀해진 점, ③ 수석 1항사 이기철이 피고인의 지시에 따라 정익주와 이학춘을 데려오기 위하여 이 사건 어선으로 넘어갔을 때 이학춘은 주기관의 우측 중앙 약간 앞부분의 위치에서 기관실 아래를 향하여 엎드린 채 무엇인가 작업을 하고 있었고, 당시 이기철은 선박 안으로 해수가 유입될 때 나는 소리인 '쉭'하는 소리를 들었던 점, ④ 이 사건 어선은 선수 부분에 화재가 발생하였을 뿐만 아니라 이기철이 정익주와 이학춘을 데려올 때에는 그 화재가 상당 부분 자연진화된 상태였고 더욱이 당시까지도 이 사건 어선의 좌현이 기울어지는 등의 문제가 발생하지 않았는데, 그로부터 약 2시간이 지난 다음 먼저 발전기가 작동을 멈추고, 이어 30분 내지 40분 후 기관실이 있는 선미 좌현부터 가라앉기 시작하여 결국 침몰하게 된 점, ⑤ 이 사건 어선의 침몰 당시 기름탱크의 폭발 등 선박침몰의 원인이 될 만한 특별한 사유가 없었을 뿐만 아니라, 이 사건 어선의 제원이나 복원성, 사고 당시의 해양상태, 이 사건 어선의 침몰시간 등에 비추어, 투망, 파도와 이로 인한 선체운동, 그리고 처리실(factory space)의 grazing line을 통하여 유입된 해수와 기관실 bilge의 적재량 등에 기인하는 선미흘수의 변화량만으로는 선박침몰에 이를 수는 없고, 적어도 킹스톤밸브와 연결된 파이프라인으로부터 유입되는 정도의 해수에 의해서만 선박침몰에 이를 수 있는 점, ⑥ 이 사건 어선의 침몰 후 피고인은 갑판장인 정재효에게 "갑판장을 믿고 말이 새지 않을 것 같아서 하는 말인데, 사고의 흔적을 없애기 위해서 그럴 수밖에 없었다."고 말하였을 뿐만 아니라, 이학춘은 정익주, 정재효, 통신장 고석윤 등과 술을 마시는 자리에서 "내가 킹스톤밸브를 열었다."고 진술한 점, ⑦ 피고인은 이 사건 어선 침몰 후 그 소유자인 회사의 하동건 부장과 함께 침몰원인에 대하여 기관실의 침수로 침몰된 것을 마치 갑판 창고에 보관 중이던 신나통과 페인트통의 폭발로 침몰한 것처럼 조작하려고 하였을 뿐만 아니라, 그 침몰시각에 대하여도 14:32경 침몰된 것을 마치 15:32경에 침몰한 것처럼 조작하려 한 점, ⑧ 이 사건 어선 침몰 후 선장과 기관장 등 일부 간부선원들을 제외한 모든 선원들이 피고인 일행의 고의적인 선박침몰을 의심한 점, ⑨ 이 사건 어선의 시가는 4억 원 내지 5억 원에 불과함에도 그 보험금은 약 35억 원에 이르는 점 등을 인정할 수 있고, 이러한 인정 사실 및 기타 기록에 나타난 모든 정황을 종합하면, 피고인과 정익주, 이학춘이 킹스톤밸브와 연결된 파이프라인을 통하여 기관실로 해수를 유입시킴으로써 선박을 매몰시킨 사실이 넉넉히 인정된다고 판단하였다.

D. The judgment of this Court

However, it is difficult to accept such fact-finding and judgment of the court below.

① As to the fact that there is no reason for the Defendant to embark on the instant fishing vessel in the friendly walk.

Around 11:00 after the fire occurred, the defendant abandoned fire extinguishment and evacuated all crew members to the fishing vessel of this case. Around 11:00, the defendant was on board the fishing vessel of this case, and the reason was changed to confirm the fire situation and the possibility of extinguishing the fire. The defendant was actually trying to confirm the situation of the fire and the possibility of extinguishing the fire. In fact, the defendant was placed to the fishing vessel of this case, and the passage to the engine room was placed on the deck, and the ship was placed to the crew be placed on the deck, and the engine room was placed in the area of residence, and the fire progress of the engine room was taken into the engine room, and the inside the engine room was examined, and the situation of the fire progress of the steering house and the residential area in the deck was returned to the next friendly walth (the investigation record 331 pages, hereinafter referred to as "number of pages"), and determined that it was difficult at the time to extinguishing the fire (the second 334 pages), together with the defendant's statements on the reason he re-board (the w).

The lower court determined that it was extremely exceptional to the Defendant’s failure to take active measures for fire-fighting, such as fire-fighting, when the first instance court instructed the crew of the instant fishing vessel to use a fire-fighting engine room, etc. However, it was difficult to conclude that the Defendant, who was not in charge of fire-fighting, failed to take active measures for fire-fighting, to either reduce the speed of the steering boat and the engine’s fire-fighting, and that it was impossible to readily conclude that the first instance court failed to take active measures for fire-fighting, on the ground that the first instance court did not have determined the emergency situation as the captain of the instant vessel, and the first instance court failed to take active measures for fire-fighting, on the ground that the Defendant’s fire-fighting had been abandoned, and the first instance court failed to take active measures for fire-fighting. However, it was difficult to readily conclude that the first instance court failed to take active measures for fire-fighting, on the ground that there was no possibility that the Defendant would have been a fire-fighting engine’s fire-fighting.

(2) Regarding the fact that the defendant takes one engineer into consideration with the head of an agency and is related to the head of an agency

While the lower court deemed that the Defendant was on board to extinguish a fire on the part of the player, the Defendant was on board again to take into account the possibility of extinguishing fire, damage situations, possibility of structure of a ship, etc., and the Defendant was liable for navigation, but the head of the agency bears the responsibility for an engine following the captain, and the head of the agency is responsible for the engine, and there was a need to act on behalf of the head of the agency to grasp the possibility of structure in the situation where the fire does not spread up to the engine room in the stern, and the first engineer was not accompanied by the Defendant, but her own her own her own her own her own her (134 pages). Thus, it is not readily concluded that the Defendant was on the part of the head of the agency and the first engineer to have intentionally sunken the ship with the head of the agency and the first engineer.

In addition, the fact that the defendant and the head of the agency did not have a good reputation is objectively recognized by the testimony of the court below (507 pages of the trial record; hereinafter referred to as "public trial record") and the communication text attached to the trial record (519 pages). On the other hand, as to the fact that the defendant and the head of the agency intentionally sunken a ship by flooding the engine room, tin and 1 mate Kim Jong-il make a statement corresponding thereto at the police (518, 157 pages). However, the defendant, together with the head of the agency, made an investigation into the insurance company and the police, is different from other seafarers, and it is difficult to relate to the fact that the defendant and the head of the agency were friendly differently from the previous one. If the defendant intentionally tried to sinking the ship by flooding the engine room, only the head of the agency alone, together with the head of the agency, or only the head of the agency that is not good, is naturally more natural.

3. As to the contents that a witness or witness of a e-mail has taken place

이기철은 경찰에서, 피고인이 우양호로 다시 넘어 오면서 기관실에 있는 기관장과 1기사를 데려오라고 지시하여 자신이 이 사건 어선으로 건너갔더니, 누군가 기관실 아래를 향하여 엎드린 채 무엇인가 작업을 하고 있었고, 선박 안으로 해수가 유입될 때 나는 것같은 '쉭'하는 소리(수 142쪽) 또는 연속적으로 '싹, 싹'하는 소리(수 210쪽)를 들었다고 진술하고 있다.

The statement of this scrap metal is distinguishable from the statement of other crew members, which is the fact that the majority of the witness himself/herself appeared and the statement of his/her thoughts. However, the statement of 2 engineer Kim Woo, who was on duty at the time of fire, was absent from the engine room, and then, he/she suspended the main engine at the time of leaving the engine room and operated the power generator as they were (number 171, 172 pages), so there was a lot of noise (number 171, 172 pages), and there was a lot of noise, and even if the statement of this scrap metal is not good enough (the first instance trial testimony, 93 pages), it is hard to recognize the main engine's own vision and 4 meters long-distance from the statement of this scrap metal without wearing 0.1 at the time, but it is hard to recognize the main body's body's body body's head or body's body's body's shape and 100 tons of it as the main body's 120 tons of it.

In addition, it is difficult to readily understand that the Defendant instructed the Lee Jae-chul to take the head of the agency and one engineer again as well as that of the head of the agency and one engineer (No. 142 pages). If the Defendant instructed him to sinking a ship by inundationing the engine room like the facts charged, it would be back to or waiting first after the completion of the work. However, it is difficult to readily understand that Lee Jae-chul’s instructions to put the head of the agency and one engineer into the engine room to the head of the agency and one engineer to the scene of his crime.

④ On the ground that Defendant 1 was sunken from the port side of the aft after having returned to the vessel after having returned to the vessel.

After about 2 hours after the defendant returned to her ship, the court below cited it as the basis for intentionally sinking the ship by the defendant that the power generator started to stop her operation and became sunken from the port of the aft where the engine room was located after 30 to 40 minutes, and that the defendant intentionally sunken the ship. The fact that the defendant had her white smoke in a smokestack before 30-40 minutes of the sinking is supported by the statement of tin (225 pages) or statement of static effect (233 pages), which is a phenomenon that occurs when the power generator was locked by water (the first instance court testimony, 93 and testimony of the court of first instance, 392 pages, and 392 pages of the court of first instance). However, the same applies to cases where the engine room was flooded for other reasons.

(5) As to the sinking of a ship only on the basis of the sea water that flows from a pipe connected to a sprinkler to a sprinkler ton valve.

The court below held that there is no special reason to serve as the cause for the sinking of the vessel at the time of the sinking of the vessel of this case, such as an oil tank explosion, etc., and that the volume of sea water flow flowed through the grazingline in the engine room and the volume of load in the engine room can not be caused by the sinking of the vessel, and at least the number of sea water flowed from the pipe connected to the string valve can only be caused by the sinking of the vessel, and that it can be caused by the sinking of the vessel only by the number of sea water flowed from the pipe connected to the string valve. This was the judgment of the court below which adopted the report under the name of the president of the Korea Maritime Research Institute affiliated with the Korea Maritime University (Gong426 pages) which was submitted at the court below, and it was difficult to conclude that the vessel has been sunken under the premise that it is difficult for the defendant to have been sunken at intervals of 30 hours from the sinking of the vessel of this case to the head of the engine (i.e., the vessel of this case).

6) As to the fact that the defendant, after the sinking of a ship, was forced to have no choice but to remove the scambal on decks from the scambling effect, and that the scambalton valves was opened in the drinking place.

Despite the denial of the defendant in the process of investigating into a substitute with the defendant at the police station, it is understood that the defendant stated that "the defendant was able to believe the deck and to eliminate the trace of the accident" at the temporary bed room of the defendant prepared by friendly 20:30 on the following day of the sinking of the ship, and that the defendant was able to say that the defendant intentionally sunken the fishing vessel of this case at the time of the accident (number 164 pages), and that the defendant was able to have intentionally sunken the fishing vessel of this case. In the court of first instance, it is somewhat doubtful that the credibility of the defendant was somewhat doubtful."

In addition, the court below cited that Egynas stated that Egynas stated that “in the Republic of Korea, string valves was opened” in the place of drinking alcohol at a restaurant located in the Montreal harbor, such as Haakju, Go-man, and Jeong Jae-su, and that this is supported by the statement of Go-kynas and John. However, Egynas’s statement that Egynas were returned to the fishing vessel of this case on the date of the sinking of the vessel, but return to the fynasium.” After the Egynas were moving back to the warehouse in the restaurant, the court below stated that Egynas did not seem to sleep the valve (134,135 pages), and that it was against the fact that Egynas did not have any investigation as to whether or not they said horses were made in the restaurant (134,135 pages), it is clear that the court below made such remarks.

7. On the ground that the defendant, together with the head of the lower unit of the company, tried to operate the cause of the sinking and to delay the sinking time for one hour.

Although the Defendant reported fire to the company, it was deemed that the first 5th anniversary of the explosion of the vessel, and at the same time, boomed the flame (6,465 pages) and the first string of the vessel, the Defendant reported the fact that the chemical substance (e.g., twit, tweet, tweet, etc.) emitted explosion again, and that the vessel was released from the fore and off at the fore and off (5,46 pages). Such a report was made subsequent to a fire and telephone conversation, so it cannot be ruled that the vessel was sunken and confirmed by telephone that there was no possibility that the vessel was destroyed by fire and that there was no harm to human life. However, it cannot be said that there was an explosion on the part of the first 6th of the vessel that the vessel was sunken by the first explosion of the vessel, and that there was no possibility that the vessel was sunken by fire and explosion, and that there was a possibility that it was an explosion by the Defendant’s initial force to escape the vessel by fire and explosion.

In addition, due effect is 14:30 times the actual sinking time is about 14:30, the defendant knew Korean seafarers that the sinking time is too rapid, and the defendant knew about the sinking time by viewing the visibility of the friendly restaurant, and stated that he was given such instructions at the hotel located in Montreal (50 pages) and that he was given such instructions (25,509 pages). However, if the defendant intentionally tried to kill the fishing vessel of this case as the captain of the friendlyho Lake, it is difficult to conclude that the sinking time of the vessel of this case was 15:30 times, and that the sinking time was 15:30 times, and that the sinking time was 15:30 times, and that the defendant intentionally attempted to kill the vessel of this case.

(8) All seafarers, excluding some executive seafarers, such as the captain, head of an agency, etc., are doubtful about the accused, head of an agency, and one engineer.

Of the 10 Korean crew members on board the instant fishing vessel, he stated that he was not intentionally sunken (72,74 pages), the remaining tin, gym effect, Kim Jong-de, Kim Jong-de, and Lee Jong-chul did not intentionally sinking the Defendant, head of the organization, and first engineer. This was not high, even though the weather of the sinking site at the time was good and high, and the crew did not enter the ship beyond the slvegway until the time when they were to get the captain, first engineer, and the instant fishing vessel returned to the captain and the instant vessel. However, on November 197, the Defendant did not first have been able to get the captain to have it reliance on the imported vessel during the 8th anniversary of the fact that the captain had been on board the vessel at the time when they were to get the captain to have it on board the vessel at the time when they were to get the captain to have it on board the vessel at the time when they were to get the captain to have it on board the vessel at the early stage.

(9) On the purchase of excessive insurance than the market price of a ship

Although high-amount insurance money is likely to be seen as the background of intentionally sunken a ship by the defendant, in order to recognize that the ship was intentionally sunken for the purpose of receiving insurance money as stated in the facts charged, there has been a smuggling between the defendant and the company to sinking the ship in advance, at least after a fire occurred, there is a reason for the defendant to have the ship intentionally sunken for the company.

First of all, there is no evidence that the defendant was ordered in advance by the company to sinking the tea boat if a dangerous situation, such as fire, etc., occurs, or that there was such a smuggling between the captain and the owner of the ship.

Therefore, the defendant should be deemed to have sunken a ship to voluntarily cause insurance proceeds to the company. However, at the time of the instant fishing vessel, there were considerable amounts of supplies, etc., other than a large quantity of fish caught and stored for eight months, which were received immediately before the occurrence of the accident (Gong394), and there is no clear reason for the defendant to waive all such things and to commit the sinking of the ship. On the other hand, on March 14, 1996, prior to the boarding of the instant fishing vessel, the fact that the defendant was aboard the captain of the deep-sea fishing vessel of another company, which was before the boarding of the instant vessel, and that the vessel has been sunken due to fire is not proven by the defendant himself (No. 325 pages).

In addition, if there was an intention to cover the insurance money for the defendant, the consent of the head of the agency or one engineer who carried out the insurance money in accordance with the defendant's direction should be obtained immediately after the occurrence of the fire, and it is not easy for the head of the agency or the head of the agency to commit the criminal act by complying with the defendant's instruction in an urgent situation such as a fire.

E. In a criminal trial, the conviction of guilt should be based on evidence with probative value that leads a judge to feel true beyond a reasonable doubt, and if there is no evidence to form such a conviction, even if there is doubt of guilt against the defendant, it should be determined as the benefit of the defendant. However, such conviction does not necessarily have to be formed by direct evidence, unless it violates the empirical and logical rules, and is formed by indirect evidence. Even if indirect evidence does not have full probative value as to the crime, it can be a comprehensive probative value that is not independent if comprehensive consideration is made in relation to the whole evidence, and in such a case, it can be recognized as criminal facts (see, e.g., Supreme Court Decisions 92Do327, Mar. 23, 1993; 9Do3273, Oct. 22, 1999).

However, this case’s fishing vessel is destroyed by fire such as the cabin and the steering house, and its repair is anticipated to require a long time and large amount of expenses. The Defendant subscribed to large hull insurance, as the captain of the instant fishing vessel, failed to take fire-fighting measures, etc. in the early stage of the sinking of the vessel, and the Defendant collected Korean seafarers immediately after the sinking of the vessel, and explained the sinking cause and sinking time separately. Accordingly, the Defendant stated that the sea water, which has gone beyond the sleepg at the time of the initial police statement, was flooded, and the vessel is eventually sunken, and the vessel was eventually sunken. As seen earlier, there is no doubt that it is not possible to see the Defendant’s failure to prosecute the vessel from Egypt and communication room, but there is no doubt that the Defendant did not actually slick up with the captain’s instructions. In light of the above facts charged, it is difficult to find that there is no doubt or evidence that the Defendant, as well as the captain of the instant fishing vessel, it was an accomplice or an accomplice without any doubt.

Nevertheless, the court below found the defendant guilty of causing property damage due to the sinking of a ship on the grounds as stated in its reasoning. The court below erred in violation of the rules of evidence or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

The part of the grounds of appeal assigning this error is with merit.

2. On the violation of the Seafarers Act

Examining the judgment of the court below and the evidence admitted by the court below in light of the records, it is just and acceptable to find the defendant guilty of violating the Seafarers' Act, and there is no error of law by misapprehending the legal principles on the Seafarers' Act.

The grounds of appeal disputing this issue are rejected.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the damage of property shall be reversed, and since the court below found the defendant guilty and punished as concurrent crimes under the former part of Article 37 of the Criminal Act, the entire conviction part of the judgment below shall be reversed and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jin-hun (Presiding Justice)