A. In order to recognize the authenticity of the interrogation protocol and the statement of Nonindicted Party 1 prepared by the public prosecutor, Nonindicted Party 1, who attended the court below as a witness, exercised the right to refuse to testify at the fifth trial date (on November 24, 2017) and the seventh trial date ( January 17, 2018). However, at the time of the seventh trial date, the facts charged that “ Nonindicted Party 1, as at the time of the foregoing seventh trial date, has already been subject to changes in indictment,” which had already been excluded in the criminal case against Nonindicted Party 1, and that “the purchase of phiphonephone from △△△△ on March 27, 2017,” it is difficult to deem that there was a justifiable reason for refusing to testify during the seventh trial date. Accordingly, in the case of each protocol against Nonindicted Party 1, which was prepared by the public prosecutor, the court below rejected the admissibility of evidence without properly examining Nonindicted Party 1’s grounds for refusing to testify (the examination of witness is necessary).

B. On March 27, 2017, the police seized Nonindicted Party 1’s mobile phone from Nonindicted Party 1 while emergency arrest, and even if seizure was made at the site of emergency arrest, if there is “a fluority” during the submission process, seizure may be conducted without a warrant, and Nonindicted Party 1 also made a statement to the investigative agency to the effect that the said “a fluority” was recognized. Accordingly, the police’s seizure of Nonindicted Party 1’s mobile phone did not err in the law of procedure as the seizure of voluntarily produced articles under Article 218 of the Criminal Procedure Act.

Even if the police's cell phone seizure committed an unlawful act, the prosecutor issued a prior warrant of search and seizure from the court on April 14, 2017, and thereby seized Nonindicted Party 1's cell phone on April 18, 2017. This is reasonable to deem that the causal relationship between the existing illegal act and the prosecutor's seizure was completely cut off because the seizure procedure was completely different from the search and seizure at the police stage. Therefore, the recorded recording file of the call content secured through the prosecutor's search and seizure should be admissible as evidence.

2. Determination on the grounds for appeal

A. The part on the assertion regarding Nonindicted 1’s protocol prepared by the prosecutor

1) Relevant legal principles

A protocol which contains a statement made by a person other than the defendant by a public prosecutor is prepared in accordance with legitimate procedures and methods, and it is proved by a statement, video-recording or any other objective means at the preparatory hearing of the person making the original statement at the public prosecutor or at the public trial, and if the defendant or his defense counsel could have examined the person making the original statement on the contents of the protocol at the preparatory hearing or at the public trial, it may be admitted as evidence: Provided, That it is limited to the case where it is proved that the statement recorded in the protocol was made in a particularly reliable state (Article 312(4) of the Criminal Procedure Act). In addition, in a case where the suspect interrogation protocol prepared by the public prosecutor as to the accomplice was submitted as evidence, unless the defendant consented to the examination protocol as to the above accomplice as evidence, it is acknowledged that the authenticity of the investigative document is established in the public trial procedure for each person who made the original statement at the public trial or the criminal trial for other accomplices, and it is admitted as admissible evidence to recognize the authenticity of the document (see Supreme Court Decision 9Do3063, Oct. 8, 19999

Article 314 of the Criminal Procedure Act provides that “When a person who needs to make a statement at a preparatory hearing or on a trial date is unable to make a statement due to death, illness, foreign residence, unknown whereabouts, or any other similar cause, the relevant protocol and other documents may be admitted as evidence: Provided, That this shall apply only when it is proved that the statement or preparation was made under particularly reliable circumstances.” As for hearsay evidence for which the statement by the original person, etc. is not proven admissible as evidence, Article 314 of the Criminal Procedure Act provides that “when a witness cannot make a statement due to death, disease, residence, unknown whereabouts, or any other similar cause” (see Article 314 of the former Criminal Procedure Act that was amended by Act No. 5054, Dec. 29, 1995; Article 314 of the former Criminal Procedure Act provides that “when a person cannot make a statement due to death, illness, or any other cause, he/she may refuse to testify due to his/her own right to refuse to testify due to the foregoing reasons; Article 314 of the former Criminal Procedure Act provides that he/she may refuse to testify.”

2) The judgment of the court below

The lower court rejected the Prosecutor’s assertion on the admissibility of evidence on the grounds that “Nonindicted Party 1 appeared as a witness on November 24, 2017 on the fifth trial date and stated that his trial is in progress at the appellate court for the reason of refusing to testify (it is reasonable to deem that, on the seventh trial date of January 17, 2018, the reason for refusing to testify was maintained on the fifth trial date in light of Nonindicted Party 1’s attitude to refuse to testify without any change in circumstances after the fifth trial date, and to refuse to testify continuously).” In light of the facts charged in the instant case, the foregoing reason for refusal is recognized as a ground for refusal of testimony as stipulated in Article 148 of the Criminal Procedure Act, and there is a justifiable reason for refusal of testimony by Nonindicted Party 1.”

3) Determination of the immediate deliberation

In light of the aforementioned legal principles, the instant case is examined.

A) The following facts are recognized by the records of the instant case, or are significant in this Court:

(1) On April 1, 2017, the police sent the case against Nonindicted Party 1, etc. (Seoul Northern District Prosecutors' Office 2017 punishment No. 1817) to the prosecutor, and the prosecutor conducted the investigation on Nonindicted Party 1 as follows.

On April 5, 2017, attached Table 201, No. 1, 2017, Apr. 11, 2017 (Evidence No. 29) No. 201, Apr. 11, 2017; No. 31, Apr. 12, 2017; No. 32; 5, Apr. 21, 2017 (Evidence No. 34); the protocol of examination of suspect (Evidence No. 26) on April 13, 2017.

on April 24, 2017, Nonindicted Party 1 was prosecuted on charges of violating the Act on the Control of Narcotics, Etc. (fence), and on October 13, 2017, the first instance court (Seoul Northern District Court 2017Da1444, 2810) sentenced Nonindicted Party 1 to a four-year imprisonment. Of the criminal facts against Nonindicted Party 1 at the time, the part related to the instant criminal facts in relation to Nonindicted Party 1’s criminal facts was “Nonindicted Party 1 shall pay KRW 6.4 million from the road in front of the Goyang-si, ○○○○○○○-gu, △△△△△△△△△, on March 27, 2017, the part related to the instant criminal facts in relation to Nonindicted Party 1 was “The sales and possession for the purpose of selling (sale and possession).”

Fidelity Nonindicted 1 appealed on the ground of misunderstanding of facts, legal scenarios, and solarly unfair, and the appellate court (Seoul Northern District Court 2017No2093) reversed the judgment of the first instance court on the ground of the prosecutor’s amendment of the indictment on January 31, 2018, and sentenced Nonindicted 1 to four years of imprisonment. Of the criminal facts against Nonindicted 1 recognized by the above appellate court, the part related to the facts charged in the instant case was dismissed as it was the final judgment of the first instance court on March 27, 2017 (the foregoing judgment of the first instance court and the judgment of the first instance court became final and conclusive on May 21, 2015).

In addition, the prosecutor applied to the court below for the testimony of Non-Indicted 1 in order to recognize the authenticity of each protocol against Non-Indicted 1 as a witness, and Non-Indicted 1 was present at the fifth trial date ( November 24, 2017) and the seventh trial date ( January 17, 2018), respectively, and refused to testify.

(v) The prosecutor applied for non-indicted 1 as a witness in the first instance, and the court adopted it, and the examination of Non-indicted 1 as to the witness was in progress on the second trial date ( June 19, 2018). However, Non-indicted 1 stated that “I refuse to take an oath and give testimony at the examination date of the party in question, and that “I refuse to take an oath because I decided to refuse to take an oath.”

B) Each protocol of examination and statement of Nonindicted Party 1 prepared by the public prosecutor regarding Nonindicted Party 1 may be admissible as evidence when Nonindicted Party 1 appeared as a witness in this case and acknowledged the authenticity of the formation of the documents. However, Nonindicted Party 1 refused to testify in the original court and the trial court, and as a result, the authenticity of each protocol was not recognized. In the case of Nonindicted Party 1’s refusal of testimony at the original court, it appears that the legitimate exercise of the right to refuse to testify under Article 148 of the Criminal Procedure Act, as decided by the lower court, and in such a case, it is obvious in the above legal doctrine that it does not fall under “when a statement is unable to be made because

The issue is Nonindicted Party 1’s refusal of testimony at the trial. The reason for refusal of testimony is to clarify the reason for refusal (Article 150 of the Criminal Procedure Act), and since the criminal case against Nonindicted Party 1 at the time of the examination of witness at the trial court, it is reasonable to deem that Nonindicted Party 1 does not recognize the right to refuse to testify based on Article 148 of the Criminal Procedure Act, and the fact that “the court determined to refuse to take an oath” does not constitute the reason for refusal of witness as prescribed by the Criminal Procedure Act. Therefore, it is difficult to view that Nonindicted Party 1’s refusal of testimony at the trial of the trial

The key issue in this case is whether the exercise of the right to refuse to testify constitutes “when a statement is unable to be made because there is any other similar cause” under Article 314 of the Criminal Procedure Act even though there is no justifiable cause as above. The prosecutor’s grounds for appeal on this part of this case also requires that the application of Article 314 shall be affirmed in this case and the admissibility of evidence shall be granted in each protocol against Nonindicted 1 prepared by the prosecutor.

C) Considering the following circumstances, it is reasonable to view that the admissibility of each protocol against Nonindicted 1 prepared by the prosecutor is denied, and therefore, the Prosecutor’s allegation in this part is without merit.

(1) The Criminal Procedure Act adopts the substantial principle of direct cross-examination and the hearsay rule that the formation of a conviction against the substance of a case must be conducted through the examination of evidence, in the presence of a judge, in order to realize the lawful procedure required by the Constitution. Therefore, the court shall ensure that the substantial principle of direct cross-examination and the hearsay rule can function faithfully as the principle of rule of criminal procedure and the trial process, and the exception thereof shall be limited to the minimum necessary extent prescribed by the Criminal Procedure Act, in order to ensure that the right to receive a fair public trial based on the principle of direct trial and the principle of court-oriented trials and the right to receive a presumption of innocence is not essentially infringed or should not be punished (see Supreme Court Decision 2007Do8552, Nov. 10, 201).

In addition, as seen earlier, the exception of the hearsay rule is reasonable to interpret as limited as possible. As such, it is desirable to limit the case where a physical testimony is impossible, such as death or disease. This interpretation accords with Article 314 of the current Criminal Procedure Act that restricts the scope of the exception of the hearsay rule more strictly than the past.

In addition, Article 312(4) of the Criminal Procedure Act is applied to the documents prepared at the investigation stage, such as the written protocol against Nonindicted 1, as in the instant case, and the right to cross-examine against the Defendant is guaranteed. However, if a witness grants admissibility of evidence by applying Article 314 of the Criminal Procedure Act on the ground that he/she refused to testify without justifiable grounds, it would result in substantial or undue infringement of the right to cross-examine against the Defendant and may endanger the status of the Defendant.

Therefore, it is reasonable to view that the exercise of the right to refuse to testify does not constitute “when a statement is unable to be made because there is any other similar cause” under Article 314 of the Criminal Procedure Act.

Article 22(1) of the Criminal Procedure Act provides that the admissibility of each protocol prepared by the Prosecutor against Nonindicted 1 is difficult even if it is different from this.

Even if the exercise of the right to refuse to testify that is not a legitimate party constitutes “when a statement is unable to be made because there is any other similar cause” as provided in the main sentence of Article 314 of the Criminal Procedure Act, the admissibility of evidence is not granted. This is because “a statement or preparation was made in a particularly reliable state” under the proviso to the same Article.

Therefore, the court should first have the public prosecutor specifically assert and prove the circumstances that were made under particularly reliable circumstances, and can only be the object of the examination of evidence when it is deemed to meet the requirements after strictly examining the circumstances. The required degree of proof is insufficient solely on the ground that there is no clear procedural error in the process of preparing the statement or protocol or there is no specific circumstance to suspect the voluntariness of the statement in light of the specific circumstances and circumstances during which the statement was made. Furthermore, beyond this point, there are specific and external circumstances that make it possible for the court to sufficiently guarantee the credibility and voluntariness of the statement even without undergoing verification through cross-examination, etc. in the court, so that even if the court forms a conviction for conviction, it can be evaluated that it does not violate the principle of trial of evidence (see the above Decisions 2007Do852, Aug. 26, 2014; 2011Do6035, Aug. 26, 2014).

In light of such legal principles, the following circumstances acknowledged by the record of this case with respect to Nonindicted 1 prepared by the prosecutor are the health stand, i.e., ① the prosecutor arrested Nonindicted 1 in the possession of the penphone immediately after the instant case; the background leading up to recognizing the Defendant’s participation; and whether exceptions to the principle of direct examination and hearsay rule can be acknowledged solely for such circumstance; ② Nonindicted 1 still had the same repeated crime period at the time of investigation (see, e.g., evidence No. 395 of the record); and rather, Nonindicted 1 appears to have made a false statement on the process of acquiring the penphone in his possession in order to be subject to punishment (see, e.g., Supreme Court Decision 2009Da14415, Apr. 5, 2017). In fact, Nonindicted 1 appears to have been aware of the credibility of the Defendant’s testimony during the cross-examination during the investigation process (see, e.g., Supreme Court Decision 2014Do41547, Apr. 1, 201).

B. Part of Nonindicted Party 1’s cell phone-related assertion

The Prosecutor’s assertion basically assumes that the seizure of Nonindicted Party 1’s cell phone is lawful. Accordingly, the Prosecutor’s assertion in each stage of the investigation agency’s search and seizure of Nonindicted Party 1’s cell phone is lawful.

1) First, we examine the seizure of mobile phones at the police stage.

A) A prosecutor or a judicial police officer may seize an article left by a suspect or other person, or an article voluntarily submitted by the owner, possessor, or custodian without a warrant (Article 218 of the Criminal Procedure Act). As to a seizure based on this, even if the method of acquiring possession is not compulsory, it shall be deemed a type of compulsory disposition, so long as the method of acquiring possession is not compulsory. Therefore, it is necessary to strictly examine whether the intent of the presenter is recognized so that it does not result in undermining the warrant requirement and the due process of law by taking the method of voluntary submission, and the scope thereof.

B) In light of the aforementioned legal principles, the record of this case ought to be prepared even in the case of search and seizure of Nonindicted Party 1 (see Article 44(1) of the Regulations on the Investigation Orders by Prosecutor and the Rules of Judicial Police Officials). In the case of this case, any record of seizure and seizure that the police voluntarily received from Nonindicted Party 1 and did not appear to have been prepared; ② there is no evidence showing the meaning of voluntary submission and disadvantage arising therefrom by Nonindicted Party 1; ③ Nonindicted Party 1 appears to have been significantly obstructed in the situation of emergency arrest at the time, and Nonindicted Party 1 appears to have been issued, and Nonindicted Party 1 appears to have no record of Nonindicted Party 1’s cell phone seizure and seizure (see, e.g., Supreme Court Decision 200Da174166, Apr. 1, 2006). It is difficult to view that Nonindicted Party 1 had no objection to the meaning and effect of voluntary submission of evidence by Nonindicted Party 1, who had been admitted to the police station’s cell phone seizure evidence.

C) Therefore, the prosecutor’s assertion on this part is without merit.

2) Next, we examine the seizure of mobile phones at the examination stage.

A) In determining whether to grant admissibility of secondary evidence, the court should first consider all circumstances related to the collection of evidence, i.e., the purport of the procedural provision and its content and degree of violation, specific course and possibility of avoidance, the nature of the right or legal interest to be protected, the degree of infringement, the relationship between the defendant and the defendant, the degree of causation between the procedural violation and the collection of evidence, the perception and intention of the investigative agency, etc. Furthermore, if the investigation agency voluntarily submitted evidence and voluntarily submitted it to the person against whom the evidence was not lawfully seized, it should consider all additional circumstances arising in the course of collecting secondary evidence based on the primary evidence as a whole and comprehensively based on specific cases (see Supreme Court Decision 2018Do2624, Apr. 26, 2018). Meanwhile, if the investigation agency voluntarily submitted the evidence to the person against whom the evidence was seized and then subsequently received it, it can be deemed that the causal relationship between the initial procedure of seizure and the final collection of evidence has been severed to the extent that it could be deemed that the prosecutor voluntarily submitted within the 13rd position of the investigative agency.

B) In light of the aforementioned legal principles, Nonindicted Party 1 stated to the effect that Nonindicted Party 1 was entrusted with Nonindicted Party 1’s cell phone for investigation cooperation upon the transfer of Nonindicted Party 1 to the prosecution. However, Nonindicted Party 1 sent Nonindicted Party 1 to the prosecutor on April 4, 2017, and Nonindicted Party 1 was examined as evidence on April 1, 2017, respectively, and Nonindicted Party 1’s cell phone search and seizure during the 14th investigation process, which is an important evidence to identify the source of the cell phone (see, e.g., Supreme Court Decision 40Do14426, Apr. 12, 2017). If Nonindicted Party 1 appears to have been found to have been illegally seized from Nonindicted Party 1’s cell phone search and seizure during the 14th investigation process, it appears that it was difficult for the prosecutor to lawfully search and seizure of Nonindicted Party 1’s cell phone.

C) Therefore, the prosecutor’s assertion on this part is without merit.

C. Sub-committee

Ultimately, the Prosecutor’s assertion that there was an error in the misapprehension of legal principles or incomplete deliberation in the judgment of admissibility of evidence is without merit, and the evidence duly adopted and examined is insufficient to recognize the facts charged of this case also justifiable.

3. Conclusion

Therefore, the prosecutor's appeal of this case is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Park Jong-sik (Presiding Judge) Kim Lee-sung

Note 1 see, e.g., 392, 538 Evidence records

2) In the case of death, disease, etc. of the person making the original statement, it is difficult to evaluate the case of refusal of testimony without any justifiable reason, because it is difficult to intentionally consider the case of infringement on Defendant

3) As seen earlier, in the course of the appellate trial against Nonindicted 1, the prosecutor also changed the facts charged in relation to the instant facts charged.

4) The contents indicated in the above internal investigation report are as follows. The mobile phone of Nonindicted Party 1, who was detained in this case, is confirmed, and approximately KRW 6 million in cash from the one-person △△△△△△ (Defendant) about KRW 40,000,000 in cash, and at least KRW 40,000 in cash from the other-person △△△△△ (Defendant) on March 27, 2017.

5) In light of the characteristics, etc. of the narcotics crime, it is general that the cell phone of the narcotics offender is confiscated immediately after being ordinarily secured, and the prosecutor’s assertion that it is necessary to seize Nonindicted Party 1, while conducting the investigation into Nonindicted Party 1 (as of April 12, 2017, the first detention period of the prosecutor against Nonindicted Party 1 is at the same time different from that of the prosecutor’s first detention period), is difficult to accept (see, e.g., page 56).