[2] The admissibility of evidence in a case where the original person making the original statement recognizes the actual authenticity during a preparatory hearing or a trial on the part of the statement made by a person other than the

[3] The case where the fact-finding without going through the amendment process does not violate the principle of no accusation

1. Emergency arrest is exceptionally permitted only when all the requirements of Article 200-3(1) of the Criminal Procedure Act are met as an exception to the warrant requirement principle. Emergency arrest without satisfying the requirements constitutes illegal arrest as non-legal grounds. Here, whether it satisfies the requirements of emergency arrest should be determined based on the situation at the time of arrest rather than on the circumstance revealed ex post facto, and the situation at the time of emergency arrest should be determined based on the situation at the time of emergency arrest. In addition, if a prosecutor or judicial police officer's judgment as to whether it satisfies the requirements is considerably unreasonable in light of the empirical rule even when considering the situation at the time of emergency arrest as the situation at the time of emergency arrest, such arrest is illegal arrest. Such illegality is serious in violation of the warrant requirement, and the protocol of examination of evidence prepared during the arrest does not constitute evidence collected illegally, and unless there are special circumstances (see Supreme Court Decision 200Do5701, Jun. 11, 200).

Examining in light of the above legal principles and the situation at the time of emergency arrest of the defendant on November 24, 2006, which can be revealed by the records, the judicial police officer cannot be deemed to have satisfied the requirements of emergency arrest as stipulated in Article 200-3(1) of the Criminal Procedure Act against the defendant at the time, and thus, it cannot be deemed that the judgment of the judicial police officer significantly lacks rationality in light of the empirical rule, and therefore, the above emergency arrest is lawful. Thus, the above emergency arrest is illegal, or the suspect examination prepared during detention under the above emergency arrest cannot be used as evidence of guilt, or the prosecution of this case is invalid because it violates the law, and all the defendant's grounds of appeal are dismissed.

2. According to Articles 216(1)2, 200-3, and 217(2) of the former Criminal Procedure Act (amended by Act No. 8496 of Jun. 1, 2007), in cases of emergency arrest of a suspect, a judicial police officer may, if necessary, seize, search, and inspect the suspect at the site of arrest without a warrant. Articles seized under the above provision shall be returned to the person who fails to obtain a warrant of detention (Provided, That where continued seizure is necessary, a warrant of search and seizure shall be issued).

In the case of this case, the judicial police officer on November 24, 2006, who arrested the defendant and seized documents belonging to the defendant in the vehicle of the defendant at the time of arrest, in accordance with the procedure prescribed in the Criminal Procedure Act (the warrant of detention was issued to the defendant on November 27, 2006 after the above emergency arrest). Thus, the defendant's ground of appeal that the above seizure procedure is unlawful is not acceptable.

3. The phrase “written as stated by the person making the original statement” refers only to whether the content of the protocol prepared by an investigative agency is recorded as the statement made by the person making the original statement at the time of its preparation, and the credibility of the statements is not to be considered. Meanwhile, in cases where the person making the original statement at a preparatory hearing or during a public trial only concerning part of the protocol in which a statement made by a person other than a suspect is recorded, the court shall recognize admissibility of evidence for the part in the pertinent protocol as stated after specifically examining which part is recorded as stated by the person making the original statement at a preparatory hearing or during public trial, and shall deny admissibility of evidence for the part in which the actual authenticity is denied (see Supreme Court Decision 2005Do1849, Jun. 10, 2005, etc.).

In light of the above legal principles and the records, the court below accepted the part of the victim non-indicted 1's statement prepared by the investigative agency which admitted the admissibility of each actual authenticity on the date of trial, and accepted it as evidence, and the part of the victim non-indicted 1's statement prepared by the judicial police officer who did not recognize the actual authenticity should not be admitted as evidence by denying the admissibility of evidence. Thus, the court below's selection and decision of evidence selection is just and acceptable, and there is no violation of the rules of evidence or misunderstanding of the legal principles as to the admissibility of evidence, as

4. Where there is no concern that the defendant's exercise of his/her right to defense may not substantially disadvantage, it does not violate the principle of no accusation even though the court recognized facts different from the facts charged without going through changes in indictment to the same extent (see Supreme Court Decision 2006Do1667, Jun. 15, 2006, etc.).

In light of the above legal principles and records, the court below maintained the judgment of the first instance that changed the date and time of the crime from " around September 22, 2006 to " around September 23, 2006" among the criminal facts of intimidation against the victim non-indicted 2 without following the amendment procedures, but changing the criminal time from " around 03:30" to " around 02:30" to " around 02:30" in all of the criminal facts of the crime of intimidation against the victim non-indicted 3 constitutes a case where the basic facts within the same scope as the facts charged are identical and there is no possibility of causing a substantial disadvantage to the defendant's exercise of his/her defense. Thus, all of the above measures of the court below are just and acceptable, and there is no violation of law such as misapprehension of legal principles as to

5. The court below, comprehensively based on the evidence duly admitted, maintains the judgment of the court of first instance that found the defendant guilty on each of the above facts constituting a crime in the judgment of the court of first instance. In light of the records, the selection of evidence, fact-finding and judgment at the court of first instance can be justified and acceptable, and there is no error of law such as incomplete deliberation, misconception of facts due to violation of the rules of evidence, or misapprehension of the legal principles as to

6. Therefore, the appeal shall be dismissed and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)