In order to use the protocol under Article 312 of the Criminal Procedure Act or the statement, documents, etc. under Article 313 of the same Act as evidence pursuant to Article 314 of the same Act, two requirements must be met that 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, disease, foreign residence, unknown whereabouts, or any other similar cause, and that the statement or preparation has to be made under particularly reliable circumstances. Whether the requirements under Article 314 of the Criminal Procedure Act, which provide exceptions to the principle of direct rule and hearsay rule, are met must be strictly examined. Since the prosecutor bears the burden of proving the requirements for the admissibility of hearsay evidence, if the court intends to recognize that the witness is unknown or is unable to make a statement due to any other similar cause, the court must have the burden of proving the fact that the witness was unable to appear at the court even though he/she made full efforts for the legal appearance of the witness (see, e.g., Supreme Court Decision 2013Do1435, Apr. 111, 201).

According to the records, the court of first instance maintained by the court below adopted the non-indicted as a witness since the defendant did not agree to the testimony of the non-indicted as a witness in the investigation agency containing the non-indicted's accusation or his statement as evidence, but the witness summons was not served. The court of first instance adopted and investigated the above accusation and the above protocol as evidence on the ground of Article 314 of the Criminal Procedure Act during the sixth trial date following the prosecutor's correction of address, request for detection of location, etc., and then, among the suspect interrogation protocol of the defendant against the non-indicted, found the non-indicted as evidence and found the defendant guilty of the facts charged in this case. However, prior to the time when the witness summons of the court of first instance was not served, the non-indicted expressed that the non-indicted expressed that he had the intention to attend as a witness by sending a telephone call to the court of first instance before the date of the fourth trial, which was the time when the witness summons of the court of first instance was not served, and the cell phone numbers of the non-indicted were recorded in the investigation record, but later, the prosecutor made efforts to confirm whether the non-indicted's witness number.

Examining these circumstances in light of the aforementioned legal principles, it cannot be deemed that the prosecutor established the circumstance that the Nonindicted Party, a witness, could make possible and sufficiently efforts to attend the court, but it was inevitable for the Nonindicted Party to attend the court. Thus, the Nonindicted Party’s complaint or the protocol containing the Nonindicted Party’s statement in the investigative agency is inadmissible as it does not meet the requirements under Article 314 of the Criminal Procedure Act. Nevertheless, the lower court’s maintenance of the first instance judgment, which is the evidence of guilt, is erroneous.

However, in light of the records, it is sufficient to acknowledge the guilty of the facts charged in this case even with the remaining evidence duly admitted by the first instance court that maintained by the court below. Therefore, it is obvious that the above erroneous judgment of the court below does not affect the conclusion of the judgment.

Ultimately, the allegation in the grounds of appeal that the lower court erred by misapprehending the legal doctrine on Article 314 of the Criminal Procedure Act, or by misapprehending the principle of trial-oriented or direct examination, or by misapprehending the rules of logic and experience and by exceeding the bounds of the principle of free evaluation of evidence, is not acceptable.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)