A. The judgment of the court of first instance which found the Defendant guilty of the instant facts charged by applying Article 314 of the Criminal Procedure Act to the police statement of the victim who has no probative value due to the victim’s side consent, although the Defendant did not have a friendly relationship with the victim D, was found guilty.

B. The first instance of the unfair sentencing decision (the fine of KRW 500,000) is too unreasonable.

2. Determination

A. 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 with regard to the assertion of mistake of facts and misapprehension of legal principles, the person who requires a statement at a preparatory hearing or on the trial date is unable to make a statement due to death, disease, foreign residence, unknown whereabouts, or any other similar cause, and the statement or preparation should be proved to have been made under particularly reliable circumstances.

In addition, when the court intends to recognize that a witness is unable to make a statement because his/her whereabouts is unknown or due to other similar reasons, the prosecutor must prove that the witness was unable to appear in court even though he/she has made full efforts to attend court even though he/she was able to do so.

(see, e.g., Supreme Court Decisions 2013Do1435, Apr. 11, 2013; 2013Do501, Oct. 17, 2013). According to the records, the first instance court adopted the victim as a witness since the defendant did not consent to the police protocol as evidence against the victim D, but did not serve the witness summons as an unknown address, and thus, did not confirm the victim’s address, the request for the correction of the address, location detection was made, but the victim was not identified, and again tried to serve the witness summons as the victim’s domicile, but was not served as the addressee’s unknown address, and the first instance court is the same.