특수절도등
1. The part of the judgment of the court below against Defendant A is reversed.
2. Defendant A shall be punished by a fine of KRW 6,00,000.
3...
1. Summary of grounds for appeal;
A. The sentence imposed by Defendant A (six months of imprisonment) by the lower court is too unreasonable.
B. The court below acquitted Defendant B of the facts charged on the ground that the prosecutor (1) there is no room for false intervention in the police statement of Defendant B, and there is a circumstance to ensure the credibility or voluntariness of the contents of the statement, and the statement was made in a particularly reliable state, but the testimony was not admissible as evidence in the court statement of the investigating police officer P, and thus, it is erroneous in the
(2) The above sentence imposed by the lower court to Defendant A on the ground of unreasonable sentencing is too uneasible and unfair.
2. Determination
A. (1) As to the assertion of mistake of facts, Article 316(1) of the Criminal Procedure Act provides that if a statement made by a person other than the defendant (including a person who has investigated, or participated in, the investigation of the defendant as a suspect before the institution of public prosecution; hereinafter the same shall apply in this Article) at a preparatory hearing or during trial contains a statement of the defendant, such statement may be admitted as evidence only when it is proved that the statement was made under particularly reliable circumstances, and thus, the testimony by an investigator who investigated the defendant prior to the institution of public prosecution is allowed to be admitted as evidence. Here, the phrase “when the statement was made under particularly reliable circumstances” refers to cases where there is little room for intervention by the fact that the statement was made under particularly reliable circumstances, and there is a specific and external circumstance to guarantee the credibility or voluntariness
(see, e.g., Supreme Court Decision 2012Do2937, Jul. 26, 2012). Meanwhile, the police officer’s interrogation protocol prepared by a judicial police officer is admissible as evidence only when the defendant acknowledged the content thereof (Article 312(3) of the Criminal Procedure Act).