(영문) 서울중앙지방법원 2019.8.22. 선고 2018고단3905 판결

The Defendant, on August 5, 2008, between 22:30 and 23:30, committed an indecent act against the victim by means of using the victim F, who was a ship of the above planning company (the victim’s 29 years old at the time, death on March 7, 2009) attending the fiveth floor Casicare VIP room of the building located in Gangnam-gu Seoul, Seoul, at the same time, the representative E of “D,” a entertainment planner at entertainment planning company, by taking advantage of the table, with the victim’s hand, standing the victim’s kne, standing the victim’s chest, kne, and knife the victim’s hand, knife the victim’s hand, and knife the victim’s knbbbbbbbs.

2. Determination

A. Circumstances suspected of being guilty

According to the testimony, etc. of G (a witness) from among the evidence submitted by the prosecutor, ① the defendant appeared at the time of the arrival of D representative E in Gangnam-gu Seoul at the time of August 5, 2008 with E, H, victims, G, etc., and the victim appeared at the time of the birth of D representative E. At the time of the victim's birth, the victim flicks theme to raise interest. ② On March 15, 2009, G made the first witness statement from the police officer to the victim's second witness statement to the effect that "It is necessary that the victim was sexually insulting at the time of the victim's death, but the victim was not sexually insulting at the time of the victim's appearance, etc., and the victim's statement to the effect that the victim was sexually insulting at the time of the victim's death."

B. Time and progress of the case

1) Circumstances before and after E

E은 2008. 8. 5.경 D 사무실에서 생일파티를 열었는데 생일파티에는 E, 탤런트 K, L, 피해자, G(M.생, 당시 약 만 21세), 그 외 E이 초대한 남자 2-3명이 참석하였다.

Defendant (N.S.) and H, a joint representative of Defendant (N.S. 38 years old at the time of the instant case, L.S. 177cm) and P. P. P. S., a joint representative of P.O., were sing down on the same page at about 8:0 p.m. on the same day, the participants took a meal for about 2 hours from that day. After completing meals, H’s permission was allowed by E, E, victims, G, Defendant, and H, through P, the head of the office in charge of the P.P. C’s reservation, planned L. P. P. to make a P., E, and P.S., among the participants of P. L. C., DJ had sing rice while working for the second P.S., 1-2d and 1-2d and 30 p.m. at the latest.

2) The career experience, etc. of those sitting in Cacare

Around 198, the Defendant was working as the Accesser to the Ministry of Finance and Economy in 1998, and the Defendant retired from S around 2003, and went on the S, but went on around 2004, and returned from July 2006 to February 2, 2007, and was employed as a visiting professor at the Japanese University and was employed as a regular member at the V Investment Advisory Company on June 2008. H established the K with L as well as the Plaintiff around January 2005 after retired from office after having been employed as a X through W of the Ministry of Finance and Economy, and introduced the E to the Defendant on May 2005, and changed the E to the management agency in 190 and around August 207, 207.

3) Death of the victim and commencement of the investigation of this case

However, when the victim died on or around March 7, 2009, the so-called ○○○○○st through the media left the so-called ○○○stststm through the media, and the content thereof was forced by force to take a weak point in money to the president of the management company of the musical entertainment, and committed suicide with the people suffering from the social guidance group and sexual intercourse. Accordingly, the investigation of the people referred to in the ○○○○stm group began in full-time around that time. However, it was revealed by the investigation that the victim and the AA (the manager of the AB affiliated company D) were the victims and the victim (the person who established the AB's personal entertainment business and operated the entertainment business) were identified in the form of the E-Ostmstm group to file a criminal complaint against those who were not the representative of the E-Ostmstm group, and that all of the documents were written in the form of the E-Othmstm group except all those who were written in the form of the E-Othm.

4) Statements, etc. at G police station

A) Statement No. 1 on March 15, 2009 ( March 15, 2009): The circumstances suspected of being guilty are as shown above.

B) Statement No. 2 (3. 18, 2009): I submitted I’s name to the police, and specified J as a criminal; J’s name was 40 middle and high; body size was 168cc.; body size was 168cc.; face form was wide, long, and head form was nife, and both head was short. Furthermore, in relation to the method of crime, J stated that the victim’s hand was knife and knife with knife and knife with knife and knife with knife and knife with knife with the victim’s body size, and the victim stated that the knife was knife with knife.

C) Statement 3 (3. 25 March 25, 2009): He was seated inside VIP room, and he and the victim were seated next to him, and he was seated next to the opposite part, and the I representative was seated next to him, and the victim was kneee by having knee and knee when he got dancing on the table, and the victim got knee and got knee to the right side of E, and the victim was knee and hume, and the I representative was seated next to the victim.

D) Statement Nos. 4 (3. 25, 2009): The name of the first representative is the introduction of the first representative from the third floor of the D building up to the time when the E work wave was conducted. The first representative did not ask Japanese language, did not sing in Japan, and did not sing in the drinking place. At the time of the previous statement, the statement made by the J that he sing out the Japanese language was sing out. The statement made at the time of the previous statement was made by the AC Drash that he sing out the Japanese language was about 165cm and that the president of the newspaper company (at least 60 psing, k was about 165cm, and kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s kn’s k, and was rejected.

On the other hand, the defendant made a statement of witness under the name of "AD" on April 4, 2009, and the first testimony was made by "H, R, and E" during the E-Day, and the I RepresentativeJ did not attend the meeting. However, the defendant reversed the statement that he participated in the meeting when G was asked by the police officer to the effect that the victim was the victim's singing above the table at the time when the second statement was made on April 6, 2009.

G and Defendant’s aforementioned statements were identified as an indecent act crime by the J, and the first investigation was conducted at the Suwon-Nam Police Station on April 7, 2009, and the second investigation was conducted at the Gyeonggi Provincial Police Agency’s metropolitan police agency on April 10, 2009, and the third investigation was conducted at the Gyeonggi Provincial Police Agency’s metropolitan investigation group on April 14, 2009 (the third investigation was conducted on the day of the case at the time of the third investigation).

E) Statement No. 5 (No. 14, 2009): The police officer conducted a four-time investigation against G, but the police officer did not accurately identify a person who commits an indecent act against the victim because he/she is mixed with other memorys with the relationship with a long time and drinking 40 times, so on April 14, 2009, the 5th witness investigation was conducted in the Gyeonggi Provincial Police Agency criminal and the law room on April 21, 2009, and the 5th witness investigation was conducted against G on the date when the physical examination was completed. At that time, G was conducted at the 5th witness investigation with H, and the 2th witness investigation was conducted at the E representative, but the 5th witness investigation was conducted at the time of the interrogation, but the 5th witness investigation was conducted by the Defendant, not by the Defendant, with the victim’s knee and knish, and the victim’s khy and the victim’s khum.

5) Statement at the prosecution of G and a disposition of non-guilty suspicion against the Defendant

A) Statement No. 1 (S. 25 July 25, 2009): At the time of Ethyphyphyphythy, the victim was set up with a short table, and the victim took dancing, and the defendant took knee in the victim's body by cutting the victim's arms, and the defendant took knee in the defendant's knee, and knebbbbbbbs. The reason why the defendant was first set up as the offender was examined by the police, and I tried to be related to the name received from J, and then called the J. The reason why the defendant was first set as the offender was determined as the offender, and later, the police officer appeared to have shown that the defendant was an indecent act outside the police officer's name at the time when he was investigated by the police at the time of his 5th time, and that the police officer did not appear to have committed an indecent act outside the police officer's name, and thus, the defendant did not appear to have been able to do so.

B) Statement No. 2 ( July 25, 2009): At the time of the first investigation by the police, the perpetrator stated that he was the president of the newspaper company. At the time of the second investigation by the police, the perpetrator stated that he was the president of the newspaper company. At the time of the second investigation by the police, he stated that he had the name of J and that police officers are the J. At the time of the second statement by the police, he made that he was so trusted and made the statement. At the time of the second investigation by the police, he stated that he was about 40 cm, the extension to approximately 168 cm, and the face is broad without wearing a knife, and the head head is the nife, and both head is the knife, and that the male, who was the short head, was involved in the indecent act, and made a statement as such, the increase in the sexual indecent act.

C) Disposition without suspicion by the prosecution (amended by Presidential Decree No. 2009. Aug. 19, 2009): G reversed three times or statements by the police as to who committed indecent act by compulsion; after the last investigation, it is difficult to avoid the possibility that the new person was identified in the psychological burden that J must present materials proving the person who committed indecent act by compulsion; after the last investigation, he submitted materials proving the person’s active act on the day of the instant case; there are many differences in H’s appearance in the investigation and face-to-face investigation; it is not consistent with G’s statement, such as whether H was present at the seat of H; whether the person appeared at the seat of H; whether the person appeared at the seat of L; whether the person appeared at L, or whether the person appeared at L; rather, G’s first statement by the police was made by combining several several types of statements; the second statement is close to the actual J; the statement in the highest condition was not mentioned in the disposition of indecent act against ○○ case.

6) The investigative recommendations of the Prosecutor’s Office and the prosecution’s indictment and G’s legal statements

On May 28, 2018, the Prosecutor's House Committee recommended the Defendant to re-examine the part of the indecent act by force against the Defendant on the part of the indecent act by force against the Defendant, and thereafter at the prosecution, the Defendant was indicted on or around June 26, 2018 without conducting a separate investigation into the Defendant and H, R, and AE. At the next two times, G was adopted as a witness or as a financial witness, and the testimony was given to the effect similar to the statement at the fifth police.

C. Specific determination

1) The basic question of G’s statement

Before and after the instant indecent act case, C had been revealed as E and the victim, G, the Defendant, H, and R. Since G had been aware of it before and after the instant indecent act, G had been done on the first day with H. However, the Defendant and R had been able to divide approximately 2 hours from E’s first raw wave at the third floor of the D building located in Gangnam-gu Seoul, Seoul, due to C’s clerical error. Moreover, H was 54 years old and height at the time of AF, and R was 53 years old and more than H was 168 meters high at the time, and was 38 years old at the time of the instant indecent act, which was committed by the Defendant and the victim at least 177cc high at the time of the instant indecent act. According to the fact that the Defendant and the victim were forced to make a statement at the time of the instant indecent act in G, it was the first and second 168 meters high from the victim’s oral act at the time of the instant indecent act.

However, G made the first witness statement at the police around 15 March 2009, about 7 months after the E’s birth day, around 10 days after the E’s first day, and made a statement to the effect that he / she committed an indecent act against the victim. At the time of the second police statement, G made a statement to the effect that, at the time of the second police statement, indecent act crime is called I J, submitted the name of J, and made a statement to the effect that it is about 40, middle and height about 168 cm before the fifth statement made on April 14, 209. In light of the above, it is doubtful whether G’s land category as an indecent act was committed (or 50, first to 40, first to 50, first to 168, second to 168, second to 57, second to 57, first to 57, second to 57, first to 57, second to 57, first to 2007.

2) As to the process in which G land category the defendant is the defendant

G stated that the president of the 50th newspaper company committed an indecent act on the basis of facts, not through his own memory, through reporters, etc., and that at the time when the first or fourth police statements were made, I representative J was aware that he was an indecent act, but at the time of the fifth or fourth statement, he stated that he was aware that the police officer’s face was reported through the video and glass presented by the police officer, and that he was aware that the Defendant, not the J, was indecent act against the victim, and that he was designated as the criminal offender.

① However, G made a statement that the president of the first police station committed an indecent act against the victim at the time of the second police statement. At the time of the second police statement, G specified J as an indecent act by submitting the name of the police officer to the name of the first J. At the time when the representative of the newspaper company whose height is about 168cc was expressed that the victim was indecent act. At the time of the second police statement, J could easily seek a photograph or dynamic image from the press organization in Korea, so it could be confirmed that G himself was an indecent act by presenting his photograph and dynamic image to G before entering the police station as the representative of the media organization. As such, it could be easily known that there was an indecent act by the police officer at the time of the first interrogation that the Defendant was not an indecent act by the police officer at the time of the first interrogation, and that it could not be seen that there was an indecent act by the police officer at the time of the first interrogation. ② At the time of the testimony of Defendant G as an indecent act by the police officer at the time of the first interrogation.

3) The position of participants and the objective situation of VIP room

① At the time, the drinking place was created by E in order to attract the life of E, not the victim’s contact with customers. The Defendant, who retired from S after retirement, was in office as the regular director of a small financial institution. On the other hand, H is a joint representative of Q, who operated the degree of KRW 650 billion, and the Defendant was initially introduced R, which led Q from H at the time, for the first time. It appears that he was able to pay special attention to his behavior. ② E is the representative of D, an entertainment planning company, who is affiliated therewith, to prevent the victim from complying with other persons. Furthermore, the Defendant’s indecent act was committed as if the Defendant committed an indecent act in the same manner as the facts charged, and even if the Defendant’s statement was made at any time after the occurrence of the indecent act, it is doubtful that he did not have any other employees from time to time to time to the public, and even if the Defendant’s statement was made at any time to the public, it is difficult to see that he did not have any other sexual act.

(d) Reorganization;

In addition to the above facts and circumstances, in full view of the fact and circumstances as well as the fact that, at the time of E, H, R, and P, both of the participants in the everyday wave, they stated that there is no or no memory of the victim (in addition, the defendant and the aforementioned participants in the everyday wave are not found in the circumstances that the J attended E’s everyday wave) and the prosecutor’s office is difficult to recognize the credibility of G’s statement because it is difficult to recognize the credibility of the Defendant’s statement by itself, it cannot be deemed that the charges were proven without reasonable doubt to the extent that the Defendant may be subject to criminal punishment only by G’s statement.

3. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of facts constituting a crime, it shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of not guilty pursuant to Article 58(2) of the Criminal Act

Judges

Judges Oduk-sik

Note tin

1) However, on February 22, 2008, G’s above statement was eventually made to offer and introduce the 60th National Assembly Chairperson to the National Assembly Chairperson at the other room of AC AC AC Or. Since then, the National Assembly Chairperson and the President of the National Assembly of Korea who reads the 60th National Assembly Chairperson to the 50th National Assembly Chairperson and the J, and made an indecent act against the President of the National Assembly Chairperson of the 50th National Assembly Chairperson. However, around February 28, 2008, G introduced the 60th National Assembly Chairperson of the 60th National Assembly Chairperson of the Republic of Korea, in which E was the representative and J in the AC AC Republic of Korea and the 60th National Assembly Chairperson of the 60th National Assembly Chairperson, and even if G was the 60th National Assembly Chairperson of the Republic of Korea on March 10, 2009, G is distinct from the 60th National Assembly Chairperson, and it does not seem clearly distinguishable from the 60th National Assembly Chairperson of Japan.

심급 사건

서울중앙지방법원 2019.8.22.선고 2018고단3905

-서울중앙지방법원 2020.2.7.선고 2019노2699

-대법원 2020.5.28.선고 2020도3258

참조조문

-형법 제58조 제2항

-형사소송법 제325조

유사 판례

-서울중앙지방법원 2020.02.07 2019노2699

-서울중앙지방법원 2020.2.7. 선고 2019노2699 판결

-서울중앙지방법원 2018.04.11 2017노4736

-수원지방법원 안산지원 2017.03.24 2016고정1745

-서울북부지방법원 2015.12.01 2014고단38