1. As to the Defendant’s ground of appeal

Criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and probative value of evidence conducted on the premise of fact-finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

For the reasons indicated in its holding, the lower court found the Defendant guilty of this part of the facts charged on the ground that the Defendant involved in the crime of arrest and confinement of Nonindicted Party 1 and Nonindicted Party 2, etc., and committed the crime of violation of the Punishment of Violences, etc. Act, which is the ancillary charges added at the lower court’s trial.

The ground of appeal disputing the above fact-finding by the court below is merely an error of the judgment of the court below as to the selection and probative value of evidence belonging to the free judgment of the fact-finding court. In light of the evidence duly admitted, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

In addition, according to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a more minor sentence is imposed on the defendant, the argument that the amount of punishment is unreasonable is not

2. As to the Prosecutor’s Grounds of Appeal

A. (1) Article 221(1) of the Criminal Procedure Act, amended by Act No. 8496 of Jun. 1, 2007, newly establishes the procedure to record his/her statement with the consent of a person who is not a suspect (hereinafter “person for reference”), but Article 312(4) of the same Act provides that a public prosecutor or judicial police officer, separate from the above video recordings, may prove the actual authenticity of the statement by using a video recording on the premise that the protocol on which the statement of a witness is recorded by the person for reference, is prepared. Even if documents or statements that cannot be used as evidence, separately from Article 318-2(1) of the same Act, which provides that a video recording that contains the statement of the witness shall be used as evidence to challenge the probative value of the statement of the defendant or witness at a preparatory hearing or during a public trial, may restrict the use of such video recording as evidence.

In addition, the provisions of the Criminal Procedure Act provide that the victim of a sexual crime under Article 30(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “the Sexual Crimes”) and Article 26(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Act”), where the victim of a sexual crime is under the age of 19 or lacks the ability to discern things or make decisions due to any physical or mental disability, and in the case of a victim of a sexual crime against a child or juvenile, the victim’s statement and the process of investigation shall be recorded and preserved with a video recording device such as a video recording device. Furthermore, the victim’s statement recorded in a video recording made in accordance with the above procedure under Article 30(6) of the Sexual Exposure Act and Article 26(6) of the ASEAN Act can be admitted as evidence in a case where the victim’s authenticity is recognized by the statement of the victim, a person in a confidential relationship with the victim who was present in the investigative process or an intermediary on the date of preparatory hearing or court date.

In contrast to the provisions of Article 30(6) of the Act or Article 26(6) of the ASEAN, which recognizes independent admissibility of evidence of the victim's statement of a sexual crime recorded in a video recording, it is reasonable to interpret that a video recording produced by an investigative agency in accordance with Article 221(1) of the Criminal Procedure Act cannot be used as an independent evidence that can directly prove the facts charged unless there are special circumstances such as the provision of other Acts and subordinate statutes.

(2) The court below rejected the prosecutor's grounds of appeal that the court below's decision of the first instance court which did not adopt the above video recordings and the transcript as evidence was unlawful, on the grounds of the reasons stated in its holding, such as that, unless the defendant's consent is given, only the video recordings that the investigative agency recorded the witness's statement cannot be used as an independent evidence without the defendant's consent, and the transcript also recorded the contents of the video recordings that cannot be used as evidence.

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is deemed to be based on the above legal principles, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the admissibility

B. The finding of guilt in a criminal trial shall be based on evidence with probative value, which could lead a judge to have a conviction more than a reasonable doubt. Unless such proof is given, the conviction cannot be rendered even if there is a suspicion of guilt against the defendant (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2005Do8675, Mar. 9, 2006).

For the reasons indicated in its holding, the court below rejected the prosecutor’s allegation in the grounds of appeal disputing the aforementioned part of the facts charged of this case, which was found not guilty on the grounds of the facts and circumstances acknowledged by the first instance court on the part of the surviving suicide aiding and abetting and the part of the suicide aiding and abetting.

The ground of appeal pointing this out to the effect that the lower court’s fact-finding is disputing the lower court’s determination on the selection and probative value of evidence, which belongs to the free judgment of the fact-finding court. In light of the records, the lower court’s determination did not err by violating logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence, contrary

C. Meanwhile, the prosecutor appealed the entire judgment of the court below, but the guilty portion is not indicated in the petition of appeal, and the appellate brief does not contain any grounds for objection.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)