According to the reasoning of the judgment of the court of first instance maintained by the court below, the court of first instance cited the prosecutor's evidence as evidence of the facts charged in this case and the protocol of interrogation of co-defendant in the court below as to co-defendants in the court below. As such, the above confession lacks voluntariness and the defendant's ground of appeal is that there is no evidence to suspect that the protocol of interrogation in the court of first instance prepared by the prosecutor was prepared without voluntariness by adviser, the court below rejected

However, according to the investigation records of this case, the case of violation of the Psychotropic Drugs Control Act is deemed to have commenced an investigation directly by the prosecutor after being aware of the crime, arrest of the defendant, and received a written statement from the same defendant on November 1, 1982, and prepared an interrogation protocol on the same defendant. However, in the court of first instance and each appellate brief, the defendant and co-defendant in the court of first instance asserted that the defendant was made in front of the narcotics control team, which is an investigative agency other than the prosecutor, even though the defendant was written by the prosecutor.

If the Defendants were to have been investigated by an investigative agency other than the prosecutor as alleged by the Defendants, even if there was no coercion to make a confession at the time of the investigation before the public prosecutor’s inspection, in the event that the Defendants received adviser at the time of the investigation agency other than the public prosecutor’s inspection and received a false confession, and the state of their voluntariness continues to exist before the public prosecutor’s investigation stage, the confession before the public prosecutor’s inspection is not voluntary (see, e.g., Supreme Court Decision 81Do2160, Oct. 13, 1981). As alleged by the Defendant, the lower court should have clarified whether the said Defendants had been investigated by an investigative agency other than the public prosecutor, and if there was a fact that the said Defendants had been forced to make a confession, etc. as alleged by the Defendants, and whether the said Defendants continued to make a confession of the same contents until the public prosecutor’s investigation stage

Nevertheless, the court below determined that there is no evidence to suspect that the suspect interrogation protocol prepared by the prosecutor was prepared without any arbitrity by the adviser without any name, and thus, it cannot be deemed that there was an error of law in the misapprehension of legal principles as to the arbitrity, admissibility of evidence, etc. of confession.

Therefore, the judgment of the court below is reversed and the case is remanded to the Daegu High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Lee Sung-soo (Presiding Justice)