A. The lower court erred by misapprehending the legal doctrine and thereby adversely affecting the conclusion of the judgment, even though the police statement of the victim D was adopted as evidence under Article 314 of the Criminal Procedure Act and was presented as evidence for the crime of the lower court. However, even though the victim D does not fall under “when it is impossible to make a statement due to the unknown whereabouts or any other similar cause” as provided in Article 314 of the Criminal Procedure Act, the lower court adopted the police statement protocol of the victim D

B. Since the Defendant did not assault the victim D, the lower court convicted the Defendant, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2. Determination

A. As to the assertion of misapprehension of the legal doctrine, in order to use the protocol under Article 312 of the Criminal Procedure Act or the statement, documents, etc. under Article 313 of the same Act as evidence pursuant to Article 314 of the same Act, two requirements must be met that a person who requires a statement at a preparatory hearing or a trial date is unable to make a statement due to death, illness, foreign residence, unknown whereabouts, or any other similar cause, and that the statement or preparation was made in a particularly reliable state. Whether the requirements under Article 314 of the Criminal Procedure Act, which provide for exceptions to the direct principle and hearsay rule, are met must be strictly examined. The prosecutor bears the burden of proving the requirements for the admissibility of hearsay evidence. Thus, if the court intends to find that a witness is missing or is unable to make a statement due to any other similar cause, the court must have the burden of proving that the witness was unable to appear at the court even if he/she made full efforts for the legal appearance of the witness (see Supreme Court Decision 2013Do5201, Oct. 17, 2013).