[부정수표단속법위반][공2009하,1386]
Even if an interrogation protocol prepared by an investigative agency other than a prosecutor for another suspect in relation to the defendant and accomplice satisfies the requirements of Article 312(4) of the Criminal Procedure Act, if the defendant denies the contents of the protocol on the trial date, whether it is admissible (negative)
Article 312(3) of the Criminal Procedure Act applies not only to the case where an investigative agency other than a public prosecutor uses the interrogation protocol of the accused prepared by the defendant as evidence of guilt, but also to the case where an investigative agency other than the public prosecutor, which prepared the suspect interrogation protocol of other accused or suspect who is co-offenders with the accused, as evidence of guilt, is adopted as evidence of guilt against the accused. Therefore, the interrogation protocol of the accused prepared by the investigative agency other than the public prosecutor, which is co-offenders with the accused, for other suspect who is co-offenders with the accused, is acknowledged by the suspect's court statement, and it satisfies the requirements of Article 3
Article 312(3) and (4) of the Criminal Procedure Act
Supreme Court en banc Decision 2003Do7185 Decided July 15, 2004 (Gong2004Ha, 1393)
Defendant
Prosecutor
Attorney Jin Jin-cag
Gwangju District Court Decision 2008No2944 Decided March 25, 2009
The appeal is dismissed.
The grounds of appeal are examined.
1. Regarding ground of appeal No. 1
Article 312(3) of the Criminal Procedure Act applies not only to the case where an investigative agency other than a public prosecutor’s interrogation protocol of the accused is used as evidence of guilt, but also to the case where an investigative agency other than a public prosecutor’s prosecutor’s suspect interrogation protocol of other accused or suspect who is co-offender-related with the accused is adopted as evidence of guilt against the accused. Therefore, even if the interrogation protocol of the accused prepared by an investigative agency other than the public prosecutor’s suspect who is co-offender-related with the accused satisfies the requirements of Article 312(4) of the Criminal Procedure Act, such as the authenticity of its formation by the suspect’s statement, it shall not be used as evidence of conviction unless the accused denies the contents of the protocol on the public trial (amended by Act No. 8496, Jun. 1, 2007; 2003Do71855, Jul. 15, 2004).
According to the reasoning of the judgment below, the court below held that each protocol of suspect interrogation prepared by a judicial police officer against the non-indicted who is an accomplice in relation to the defendant is inadmissible as long as the defendant and the defense counsel agree to the effect that even if the non-indicted, who is the original person, acknowledged the authenticity of its establishment in the court of original instance, the contents of the protocol are not admitted as evidence. In light of the above legal principles, the judgment of the court below is just, and there is no
2. Regarding ground of appeal No. 2
This part of the ground of appeal is just an error in the deliberation of evidence and fact-finding, which are matters of the full authority of the fact-finding court, and it cannot be viewed as a legitimate ground of appeal, and even ex officio examination of the judgment below is not erroneous in the rules of evidence
3. Conclusion
Therefore, the prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Cha Han-sung (Presiding Justice)