[2] In a case where the first instance court entrusted the witness Gap with the detection of the whereabouts of the witness and received the report on the detection of the whereabouts by entrusting the witness Gap, and then adopted the police and the prosecutor's protocol as evidence, the case holding that the case does not constitute "when a statement is unable to be made because the whereabouts are unknown or any other similar cause" under Article 314 of the Criminal Procedure Act

[2] In a case where the first instance court entrusted the detection of Gap's whereabouts to the witness's address and received the report on the detection of Gap's whereabouts, and then adopted the police and the prosecutor's protocol as evidence, the case holding that the court below erred by misapprehending the legal principles as evidence under Article 314 of the Criminal Procedure Act since it cannot be viewed as a case where it proves that Gap's legal attendance cannot be seen as a case where it was inevitable, even though the prosecutor made possible and sufficient efforts to attend the court, and it cannot be seen as a case where Gap's legal attendance cannot be seen as an "when it is impossible to make a statement due to unknown whereabouts or any other similar cause" in the investigation record, and the police officer's protocol was also included in the investigation record, and there is a cell phone number different from the above cell phone number and other cell phone number in the subsequent prosecutor's protocol. However, the prosecutor's office and the prosecutor's office's office's protocol were admissible under Article 314 of the Criminal Procedure Act.

Of the facts charged in the instant case, the summary of the charge of violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.), violence, and concealment of property is as follows: (a) around September 27, 2011, at the main point of the trade name “○○○○○○○○,” located in the Daegu-gu Public Prosecutor’s Dong-dong (hereinafter “○○○○○○○○”), the Defendant collected a small-scale illness, which is a dangerous thing while drinking alcohol; (b) taken several times, Nonindicted 1 of the victim Nonindicted 1, who was used on the floor, was exposed to the victim Nonindicted 1, who was unable to know the treatment days due to the shocking of the left head; (c) committed assault to the victim Nonindicted 2 at the above time and at the above place, and committed assault to the victim Nonindicted 2 at the right side of the victim’s right; and (d) concealed the victim Nonindicted 2, 213,000 won of the record of statement by the prosecutor’s office and the lower court.

However, it is difficult to accept the judgment of the court below that recognized Nonindicted 2 as evidence of guilt because the police and the prosecutor's statement of Nonindicted 2 were admissible as evidence.

Pursuant to Article 314 of the Criminal Procedure Act, in order to use the protocol under Article 312 of the same Act or the statement, documents, etc. under Article 313 of the same Act as evidence, a person who needs to make a statement on the trial date must be a person who is unable to make a statement at the public trial due to death, disease, foreign residence, unknown whereabouts, or any other similar cause, and must be made under particularly reliable circumstances, and the preparation of the statement or documents must be made under the circumstances. In addition, the requirements under Article 314 of the Criminal Procedure Act, which provide for exceptions to directism and hearsay rule, must be strictly examined. The burden of proof for the admissibility of hearsay evidence exists on the ground that the court has the burden of proof on the requirements for the admissibility of hearsay evidence. Thus, if the court intends to acknowledge that the witness is unable to make a statement due to other similar causes, the prosecutor must prove the circumstance that the witness was unable to appear at the court even though he/she had made possible and sufficiently efforts to attend the court (see, e.g., Supreme Court Decisions 2006Do28688.

According to the records, the court of first instance adopted Nonindicted 2 as a witness who did not agree to the police and prosecutor's statement against Nonindicted 2 as evidence, and served the witness summons at the address of Nonindicted 2 as a result of the service of Nonindicted 2, but submitted a report of non-location to the effect that Nonindicted 2 is not residing in his domicile by commissioning Nonindicted 2 to detect the location of Nonindicted 2 as he was not served, and that the above police and prosecutor's statement constituted "where the location is unknown" under Article 314 of the Criminal Procedure Act, and thus, adopted the above police and prosecutor's statement as evidence.

However, in the application for the witness submitted by the prosecutor, the cell phone number stated in the police protocol against Nonindicted 2 is indicated, and the police protocol on Nonindicted 2 is also indicated in the investigation record, and even though the aforementioned cell phone number and the cell phone number are indicated in the subsequent protocol of statement made by the prosecutor, there is no data that the prosecutor made considerable efforts for Nonindicted 2 to attend the court by directly or through the police to contact Nonindicted 2 with each of the above cell numbers and to confirm whether he/she is a legal intention.

In light of the aforementioned legal principles, even if Nonindicted 2’s aforementioned circumstances were to be possible and sufficiently endeavored to attend the court, it cannot be viewed as a case where it is proved that Nonindicted 2’s appearance in the court was inevitable. Thus, it cannot be deemed as constituting “when a statement is unable to be made because the whereabouts are unknown or any other similar cause” under Article 314 of the Criminal Procedure Act.

Nevertheless, the court below acknowledged that the above police officer's statement by the prosecutor's office is admissible by Article 314 of the Criminal Procedure Act, and considered it as evidence of conviction in violation of the Punishment of Violences, etc. Act (a group, deadly weapons, etc.), violence and concealment of property among the charges of this case. Thus, the court below erred by misapprehending the legal principles on admissibility of evidence under Article 314 of the Criminal Procedure Act, which affected the conclusion

Therefore, among the judgment of the court below, there is a ground for reversal of the above facts as to the violation of the Punishment of Violences, etc. Act (a group, deadly weapon, etc.), violence and concealment of property, and since this part was sentenced to a single punishment in relation to the remaining crimes of the defendant and concurrent crimes under the former part of Article 37 of the Criminal Act, the entire judgment of the court below is reversed, and the case is remanded to the court below for a new trial

Justices Park Poe-dae (Presiding Justice)