1. If a document or a document stating a suspect's statement is prepared in the course of investigation into an investigative agency, even if it takes the form of "written statement, written statement, and written statement," it cannot be viewed differently from the interrogation protocol of a suspect. Meanwhile, the suspect's right to refuse to make statements guaranteed by the Criminal Procedure Act is based on the right to refuse to make statements against a criminal suspect, which is not forced to make a statement unfavorable to the criminal defendant guaranteed by the Constitution. Thus, if the investigative agency did not notify the suspect of the right to refuse to make statements in advance while questioning the suspect, the suspect's statement should be denied as evidence illegally collected and the voluntariness of the statement is recognized (see Supreme Court Decision 2008Do8213, Aug. 20, 200). In addition, it is reasonable to view that the suspect's status subject to notification by the investigative agency is 200Do8213, Oct. 16, 201; 2008Do317, etc., even before the investigative agency preparation of a criminal suspect's statement (see Supreme Court Decision 200Do38.).

2. After recognizing the circumstances as stated in its reasoning, the lower court determined that: (a) the Defendant was not a suspect before he was investigated as a suspect as a prosecutor; (b) the Defendant was investigated as a victim of Co-Defendant B (hereinafter referred to as Co-Defendant B) in the lower court; (c) the possibility of being in an essential accomplice relationship between B and the Defendant cannot be readily concluded that the prosecution investigator recognized the charge against the Defendant at the time when the Defendant was investigated as a witness and became a suspect by starting the investigation; and (c) there was no circumstance that the prosecution investigator was able to avoid the notification of the right to refuse to make a statement even though the prosecution investigator was able to start the investigation against the Defendant, and there was no circumstance that the Defendant’s written statement and each written statement of the Defendant cannot be admissible as an illegally collected evidence, solely on the ground that even though the Defendant was investigated as a witness who is not a suspect and was not notified of the right to refuse a statement by the investigation agency.

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. According to the reasoning of the lower judgment and the record, the following circumstances are revealed. (1) On October 1, 2010, at the District Prosecutors’ Office of Gwangju District Prosecutors’ Office, the Prosecutor received a written application for anonymous coal against B with the content that “(2) had not been promoted for more than two years by a member of the National Assembly to be promoted as the director of A’s division.” On October 8, 2010, the Prosecutor C directed the Prosecutor to report the results of the investigation by not later than November 8, 2010, when it is acknowledged that there was a suspicion of a crime by internal investigation into the said Public Prosecutor’s Office and the investigation into the respondent and the investigation into the District Public Prosecutor’s Office of this case, the Prosecutor directed the Prosecutor to report the existence of the above written application for coal against B, who was the respondent, and if not entered the same, the results of the investigation should be reported together with the investigation records.

(3) Accordingly, the prosecutorial investigator D summoned the Defendant on October 18, 2010, and confirmed the facts stated in the above written application for the offering of bribe to B during about two hours. When the Defendant drafted a written statement to the same effect as denying the offering of bribe to B, D had the Defendant prepare a written statement "I know about all the facts," and eventually, the Defendant issued a written statement to B around 2007, “I would like to deliver KRW 10 million in return for the solicitation of promotion to B, but received a return of KRW 10 million in return for the solicitation of promotion to B, but around 207, I would like to summon the Defendant as a witness for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes to B and to summon the Defendant to B as a criminal suspect on October 27, 2010.

(5) On October 28, 2010, D summoned the Defendant as a witness and investigated the case. The Defendant reversed the previous statement and stated that the money delivered to B was returned to the account held in the name of son on September 27, 2010, and that the money was returned to the account held in the name of son on November 1, 2010, and thereafter stated to the same purport. (6) After the examination of the witness conducted on November 16, 2010, D summoned B and the Defendant on the summons on December 14, 2010, but repeated the existing assertion that there was no money given in return for the request for promotion.

(7) On December 21, 2010, in the investigation division of the above prosecutor's office, there is no evidence to acknowledge the crime in the respondent B, and it is reasonable to handle the case in question with the opinion that it is reasonable to transfer the case to the prosecutor C.

(8) On January 12, 2011, the prosecutor summoned the Defendant as the witness for the case against the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Embrym for known players) against B, and drafted the statement. When the Defendant was forced to enforce the reversal of the statement, etc., the Defendant stated that the money deposited in the Defendant’s account in the name of the Defendant on September 27, 2010 was borrowed from B, not from return of the money lent to B in 2007.

(9) On January 13, 2011, the public prosecutor C summoned the Defendant as the suspect in the offering of bribe case and drafted a suspect interrogation protocol. On May 17, 2011, the public prosecutor prosecuted the Defendant for the offering of bribe.

B. Examining the above circumstances in light of the legal principles as seen earlier, the following is determined.

The contents of the Defendant’s written statement and the Defendant’s written statement prepared after the prosecutor’s internal investigation as to the facts charged of the instant case are crimes subject to internal investigation, which are related to the Defendant’s offering of money in the course of soliciting promotion to B, and the offer of bribe and the offer of bribe to B is an act inevitably accompanied by one another, and the offer of bribe is more severe than the offering of bribe. Thus, the investigation and investigation of the facts of the Defendant’s receiving of the offering of a bribe and the fact of receiving the offering of a bribe to B are related to the investigation and investigation thereof. At the time, the investigation of the investigation by a investigative agency summonsing the Defendant and having the Defendant confirm the fact of receiving and receiving the relevant bribe and make a detailed statement on it, at the same time, it is reasonable to deem that the Defendant had already been a suspect at the time of the offering of a bribe.

Therefore, even if the defendant's statement made by the investigative agency takes the form of a witness's statement and statement as above, since it has the nature of the statement and protocol of interrogation prepared by the suspect as a document stating the defendant's status at the time of the preparation of the statement and statement, the defendant's statement concerning the facts charged of this case, which was written without notifying the right to refuse to make a statement, is an illegally collected evidence and its admissibility should be denied.

C. Nevertheless, the lower court determined that the above statement and each of the above statement are admissible even if the Defendant did not notify the Defendant of the right to remain silent at the time of the preparation of the Defendant’s written statement and each of the written statements. In so doing, the lower court erred by misapprehending the legal doctrine on the right to remain silent and the recognition of a suspect who is subject to the notification, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

4. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon

Justices Kim Yong-deok

Justices Kim Gin-young