[edit] Supreme Court Decision 2001Do3081 delivered on September 4, 2001 [Forced Molestation of Minor]

【Main Issues】

[1] Criteria to determine the calculation of the statute of limitations for a complaint filed by an agent of the victim

[2] Admissibility of hearsay statements or documents containing hearsay statements that defendant objected to being admitted into as evidence

【Summary of Judgment】

[1] A complaint filed by an agent of the alleged victim under Article 236 of the Criminal Procedure Act is validly filed if it is substantially proved that the person entitled to file the complaint delegated his or her authority to bring the claim to the agent. As there are no special restrictions on how to prove such delegation of authority, a power of attorney is not required, nor is it necessary to specify in the complaint that it is being filed by proxy. Furthermore, the statute of limitations begins to run from the date on which the person entitled to file the complaint becomes aware of the identity of the alleged offender, based on the knowledge of the lawful person entitled to file the complaint, and not based on the knowledge of the agent who filed the complaint.

[2] As a general rule, hearsay statements or documents containing hearsay statements are not admissible as evidence in accordance with the provisions of Article 310-2 of the Criminal Procedure Act. However, under Article 316-2 of the Criminal Procedure Act, hearsay statements may be admitted into evidence if the person who originally made such statements is unable to testify due to death, sickness, overseas residence or other causes, and if such statements were made under circumstances that make the statements appear credible. In order for documents containing hearsay statements to be admissible as evidence, the documents must satisfy the admissibility requirements under Article 312 or Article 314 of the Criminal Procedure Act, and must also satisfy the requirements set forth in Article 316 Paragraph (2) of the Criminal Procedure Act.

【Reference Provisions】 [1] Article 236 of the Civil Procedure Act / [2] Articles 310-2, 312, 314 and Article 316, Paragraph (2) of the Civil Procedure Act

【Reference Cases】 [1] Supreme Court Decision 95Do523 delivered June 13, 1995 (Gong1995Ha, 2431), Supreme Court Decision 96Do2865 delivered April 11, 1997 (Gong1997Sang, 1512), Supreme Court Decision 98Do2742 delivered February 26, 1999 (Gong1999Sang, 692), Supreme Court Decision 99Do3786 delivered November 26, 1999 (Gong2000Sang, 112), Supreme Court Decision 2000Do159 delivered March 10, 2000 (Gong2000Sang, 1001), Supreme Court Decision 99Do4814 delivered September 8, 2000 (Gong2000Ha, 2158), Supreme Court Decision 2001Do2891 delivered July 27, 2001 (Gong2000Ha, 2024)

【Defendant】 Defendant

【Appellant】 Defendant

【Defense Counsel】 Law Office Ilshin, Attorney Kim Dong-hwan and 1 other

【Court of First Instance】 Suwon District Court judgment 2002Godan6110 delivered on January 12, 2001

【Court of Second Instance】 Suwon District Court judgment 2001No344 delivered on May 24, 2001

【Disposition】 The court below's judgment shall be reversed and the case shall be remanded to the Appellate Division of Suwon District Court.

【Reasoning】1. A complaint filed by proxy under Article 236 of the Criminal Procedure Act is validly filed if it is substantially proved that the authority to bring the charge was granted by the person entitled to file a complaint. As there are no special restrictions on how to prove such delegation of authority, a power of attorney is not required, nor is it required to specify in the complaint that it is being filed by proxy. Furthermore, the statute of limitations begins to run from the date on which the person entitled to file a complaint becomes aware of the identity of the alleged offender, based on the knowledge of the lawful person entitled to file the complaint, and not the knowledge of the agent who filed the complaint.

In this case, with respect to each of the offenses (offenses 3 and 12 as set forth in the List of Offenses in the judgment of the first trial) by Defendant committed against Victim 1, a complaint was filed by the Victim's grandmother, who is not the person entitled to file the complaint. However, the complaint was validly filed because the mother of Victim 1, who was the person lawfully entitled to file the complaint, delegated the authority to bring the charges to the Victim's grandmother. In addition, with respect to offense No. 12, the 1-year statute of limitations provided in Article 19, Paragraph (1) of the Criminal Procedure Act on the Punishment of Sexual Crimes and Protection of Victims did not elapse from the date and time of the occurrence of such offense. Also, with respect to offense No. 3, since Victim 1's mother became aware of the criminal conduct in or around August 2000 and immediately proceeded to file the complaint, the complaint in this case was timely filed.

In this regard, it was proper and reasonable that the court below's judgment acknowledged and concluded the above, and the court below did not err by failing to make a thorough examination, nor did it violate the rules regarding the admissibility of evidence or misunderstand the legal principles pertaining to filing charges by proxy and the calculation of the statute of limitations, as alleged in the grounds for appeal. Accordingly, the ground for appeal pointing this out is not justified.

2. In addition, with respect to each of the charges regarding the remaining offenses other than those committed against Victim 1 mentioned above, in the case of the offenses set forth in No. 7 and Nos. 9 through 11 in the List of Offenses, even if the statute of limitations runs from the date of such offenses, a period of 1 year did not elapse until the complaint was filed. Furthermore, in the case of the offenses in Nos. 1, 2 and 4 through 6 and 8, the victims' parents did not become aware of the criminal conduct until immediately before the complaint was finally filed. Based on the foregoing, it was proper and reasonable that the court below's judgment found that the complaint of this case timely filed. The court below did not err by failing to make a thorough examination, nor did it violate the rules regarding the admissibility of evidence or misunderstand the legal principles pertaining to filing charges by proxy and the calculation of the statute of limitations, as alleged in the grounds for appeal. Accordingly, the ground for appeal pointing this out is not justified.

3. It was also proper and reasonable that the court below's judgment found Defendant guilty of the criminal offenses as set forth in Nos. 1, 2, 4 through 9, 11 and 12 of the List of Offenses, and the court below did not err by failing to make a thorough examination or violating the rules on the admissibility of evidence. Accordingly, the ground for appeal pointing this out is not justified.

4. On the other hand, the court below found Defendant guilty of committing offense No. 3, determining that Defendant molested Victim 1 in or around April 1999 (hereinafter referred to as the Charge regarding Offense No. 3) and offense No. 10, determining that Defendant molested Victim 2 in or around August 2000 (hereinafter referred to as the Charge regarding Offense No. 10), all as set forth in the List of Offenses.

However, when we examine this case, Defendant initially admitted committing all of the above criminal offenses during the police investigation, but thereafter consistently denied committing such offenses beginning from the prosecution's investigation through the first trial and the court below's judgment. Defendant denied the truth of the contents of the Defendant's examination report prepared by the police, and thus such report cannot be admitted into evidence. The evidence used by the court of the original judgment to establish the guilt of Defendant only consisted only of (i) each of the statements made by (a) Victim 1's mother as a witness in the court of the original judgment and (b) Victim 1's grandmother as a witness at the first trial and the statement report prepared by the police for Victim 1's grandmother, with respect to the Charge regarding Offense No. 3, and (ii) each of the statements made by Yoon Seong-hee as a witness at the first trial and the statement report prepared by the police for Yoon Seong-hee with respect to the Charge regarding Offense No. 10. In addition, among the above incriminating evidence, all of the evidence with respect to the Charge regarding Offense No. 3 Section, was based on certain oral accounts describing that witnesses heard from Victim 1 that Victim 1 was molested in or around April 1999 or in or around August 2000, and the evidence with respect to the Charge regarding Offense No. 10 was based on certain oral accounts describing that a certain witness heard from Victim 2 that Victim 2 was molested in or around August 17, 2000. Therefore, each of the statements made by Victim 1's mother and grandmother and Yoon Seong-hee on the trial date constitute hearsay evidence based on statements made by others outside the preparatory hearing or at a time other than the trial dates, as prescribed in Article 310-2 of the Criminal Procedure Act. In addition, the statement reports prepared by the police containing each of the statements made by Victim 1's grandmother and Yoon Seong-hee constitute what we call "hearsay within hearsay" (hearsay evidence that contain hearsay statements).

In connection with the above, hearsay statements or documents containing hearsay statements are not admissible as evidence in accordance with the provisions of Article 310-2 of the Criminal Procedure Act. However, as an exception, under Article 316-2 of the Criminal Procedure Act, hearsay statements may be admitted into evidence if the person who originally made such statements is unable to testify due to death, sickness, overseas residence or other causes, and if such statements were made under circumstances that make the statements appear credible. In order for documents containing hearsay statements to be admissible as evidence, the documents must satisfy the admissibility requirements under Article 312 or Article 314 of the Criminal Procedure Act, and must also satisfy the requirements set forth in Article 316 Paragraph (2) of the Criminal Procedure Act. (See Supreme Court Decision 2000Do159 delivered March 10, 2000.) In this case, Victim 1 appeared and testified in court as a witness at the first trial and denied that Victim 1 was molested by Defendant, contrary to the Charge regarding Offense No. 3. While appearing and testifying in court as a witness, Victim 2 did not state that Defendant committed any molestation, contrary to the Charge regarding Offense No. 10. In light of the foregoing, it cannot be said that Victim 1 or Victim 2, who originally made the allegations of molestation, are unable to testify due to death, sickness or other causes. Accordingly, each of the statements made by Victim 1's mother (as a witness in the court below) and by Victim 1's grandmother (as a witness at the first trial) based on Victim 1's statements and the statement report prepared by the police for Victim 1's grandmother and the statements made by Yoon Seong-hee (as a witness at the first trial) based on Victim 2's statements and the statement reports prepared by the police for Yoon Seong-hee constitute hearsay evidence, and thus are not admissible as evidence.

Accordingly, the court below that conclusively found Defendant guilty of the Charges regarding Offense No. 3 and No. 10 based on the information above erred by misunderstanding the legal principles pertaining to the admissibility of hearsay evidence, thereby affecting the conclusion of the judgment. The ground for appeal pointing this out is therefore justified.

5. Based on the foregoing, the court below's judgment in respect of the Charges regarding Offense No. 3 and No. 10 can not stand. Since the remaining offenses of which the court below found Defendant guilty and the offenses in connection with the part of the judgment reversed herein are concurrent crimes as defined in the preamble of Article 37 of the Criminal Act, all of the court below's judgments shall be reversed and the case shall be remanded to the court below.

It is so ordered as per Disposition.

Justices Bae Ki-won (Presiding Justice)

Suh Sung (Justice in Charge)

Yoo Ji-dam

Park Jae-yoon.

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