[2] The admissibility of the protocol in which the full text or the full text statement was made / The meaning of “the fact that the statement or the full text statement was made in a particularly reliable state” under Article 316(2) of the Criminal Procedure Act

[3] The degree of “proof of whether a statement or preparation by a witness was made in a particularly reliable state” under Article 314 of the Criminal Procedure Act (i.e., “proof of whether it was made in a particularly reliable state”) / Whether such a legal principle also applies to the case under Article 316(2) of the Criminal Procedure Act where the person making the original statement is premised on the unknown whereabouts of the person making the original statement (affirmative)

[2] In principle, a protocol containing a full text or a full text statement shall not be admissible as evidence in accordance with Article 310-2 of the Criminal Procedure Act. However, a full text statement refers to a case where the original statement is unable to make a statement due to death, illness, foreign residence, unknown whereabouts, or any other similar cause pursuant to Article 316(2) of the Criminal Procedure Act, and it is exceptionally admissible only when it is proved that the statement was made in a particularly reliable state. Furthermore, a protocol containing a full text statement shall be admissible as evidence in cases where its admissibility can be acknowledged pursuant to Article 312 or 314 of the Criminal Procedure Act, as well as where it satisfies the requirements under Article 316(2) of the Criminal Procedure Act. “The statement or a full text statement was made in a particularly reliable state” as referred to in Article 316(2) of the Criminal Procedure Act refers to cases where there is little room to intervene in the preparation of a statement or a written statement, or where there is any specific and external circumstance that guarantees the credibility or discretionary nature of the content of

[3] Article 312 or 313 of the Criminal Procedure Act recognizes admissibility of evidence only where strict requirements are met, such as guaranteeing the right of cross-examination of a defendant or his/her defense counsel with respect to the statement or written statement prepared by a witness. Article 314 of the Criminal Procedure Act recognizes exceptions to the basic principles, such as direct psychological principle, in cases where the whereabouts of a witness are unknown, etc., thereby allowing the admissibility of evidence without any opportunity to cross-examine the person making the original statement. Therefore, in such a case, the “certification of the fact that the statement or written statement was made in a particularly reliable state” is insufficient to the extent that it is probable, and it should be ruled out to the extent that reasonable deliberation is conducted. Furthermore, such legal principle applies to the case of Article 316(2) of the Criminal Procedure Act premised on the unknown whereabouts of the person making the original statement.

1. Determination on admissibility of evidence

(a) Procedure and method for preparing protocol;

Article 312(4) of the Criminal Procedure Act provides that “a prosecutor or senior judicial police officer who intends to recognize the admissibility of a protocol in which a statement by a person other than the defendant is written in compliance with the due process and method” shall be “the preparation of a protocol in compliance with the due process and method”. Here, lawful process and method refer to the compliance with various procedures prescribed by the Criminal Procedure Act, and the preparation of a protocol by a person other than the defendant does not go against the preparation method of the protocol (see, e.g., Supreme Court Decisions 2011Do7757, May 24, 2012; 2010Do3359, Mar. 28, 2013).

The lower court denied the admissibility of evidence on the ground that the part of Nonindicted Party 2’s statement in the second prosecutor’s statement against Nonindicted Party 1, Sri Lanka, was not prepared in accordance with the legitimate procedure and method prescribed in Article 244-4(3) of the Criminal Procedure Act, and that the Defendant did not consent to use it as evidence.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine on admissibility of evidence.

B. Professional Statement

(1) In principle, a protocol containing a full text or a full text statement shall not be admissible in accordance with Article 310-2 of the Criminal Procedure Act. However, the full text statement may not be admissible in accordance with Article 316(2) of the Criminal Procedure Act only when the person making the original statement is unable to make a statement due to death, illness, foreign residence, unknown whereabouts, or any other similar cause, and it is proved that the statement was made under particularly reliable circumstances. Furthermore, a protocol containing a full text statement shall be admissible in cases where it is admissible in accordance with Article 312 or 314 of the Criminal Procedure Act, and it shall be exceptionally admissible in compliance with the requirements provided for in Article 316(2) of the Criminal Procedure Act (see, e.g., Supreme Court Decision 201Do14680, Apr. 13, 2012). “A statement made in a particularly reliable state” as referred to in Article 316(2) of the Criminal Procedure Act does not have any room for involvement in the preparation of a statement or document, or a false statement, nor may there be any specific and exceptional.

Article 312 or 313 of the Criminal Procedure Act recognizes admissibility of evidence only where strict requirements are met, such as guaranteeing the right of cross-examination of the accused or his/her defense counsel with respect to the statement or statement made by a witness, which is written or prepared by him/her. Article 314 of the Criminal Procedure Act recognizes exceptions to the basic principles, such as direct psychological principle, in cases where the whereabouts of a witness are unknown, etc., so that the admissibility of evidence may be granted without any opportunity to cross-examine the person making the original statement. Therefore, in such cases, “proof of the fact that the statement or preparation was made in a particularly reliable state” should be limited to the extent that it is insufficient to the extent that there is a possibility to do so, and it should be ruled out that reasonable deliberation is possible (see, e.g., Supreme Court Decision 2013Do12652, Feb. 21, 2014). Furthermore, Article 316(2) of the Criminal Procedure Act, which assumes the location of the person making the original statement, applies as it (see, etc.).

(2) For the following reasons, the lower court determined that the admissibility of evidence cannot be acknowledged on each part of the statement that Nonindicted Party 1, Sri Lanka, Nonindicted Party 3, and Sri Lanka (the investigative agency and the court present at the name of witness or witness; hereinafter “Scardong”) appeared from Nonindicted Party 2 on the grounds that there is little room to intervene in the contents of the statement, and that there is insufficient evidence to prove that there was specific and external circumstances to ensure credibility or decentralization of the contents of the statement. In other words, the statement that Nonindicted Party 3 appeared from Nonindicted Party 2, etc. is not specified, as well as the statement that Nonindicted Party 4 and Nonindicted Party 2 appeared from Nonindicted Party 2 at the time of the crime, and that there is any inconsistency between the victim’s statement and the victim’s statement that is presumed to have been made at the time of the crime, and that there is no doubt that Nonindicted Party 1’s statements were made at the time of the crime, including the fact that Nonindicted Party 2’s statements were made in violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims.

(3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court’s aforementioned determination is acceptable. In so determining, it did not err by misapprehending the legal doctrine on admissibility of evidence, contrary to what is alleged in

2. Determination on the remaining grounds of appeal

The conviction in a criminal trial ought to be based on evidence with probative value, which makes it possible for a judge to have a conviction true beyond a reasonable doubt. If there is no such proof, the conviction may not be rendered even if there is a doubt of guilt against the defendant (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2005Do8675, Mar. 9, 2006). Moreover, the recognition of facts, the selection of evidence, and the probative value of evidence belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

For the following reasons, the lower court determined that the evidence submitted by the prosecutor alone cannot be deemed to have been proven to the extent that there is no reasonable doubt as to the above facts charged. ① Even if the admissibility of each of the above statements is recognized, it is insufficient to recognize the changed facts charged in the lower court that the Defendant raped the victim with Nonindicted 4 and Nonindicted 2, and forced the victim to take advantage of the victim’s responsibility, cash, and student card in the opportunity to rape. ② The recording recording of the first prosecutor’s statement at the Hong-ro consent, with the Defendant’s consent, is contradictory to the objective situation at the site at the time of the traffic accident, and thus, cannot be deemed to have credibility in the content of the statement. ③ Even based on the remaining evidence, including the statement of appraisal of the fixed amount found in the victim’s clothes, it is insufficient to prove that the Defendant raped the victim in combination with Nonindicted 4 and Nonindicted 2, or took advantage of the victim’s belongings before the completion of the rape.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the crime of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof, thereby adversely affecting

3. Conclusion

The prosecutor's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)