[특정범죄가중처벌등에관한법률위반(절도)][공1989.8.15.(854),1196]
Whether the requirement of Article 314 of the Criminal Procedure Act is satisfied in cases where a person who needs to make a statement refuses to comply with summons and the execution of compulsory appearance is not possible (affirmative)
Pursuant to Article 314 of the Criminal Procedure Act, the protocol under Article 312 of the same Act or the statement, documents, etc. under Article 313 of the same Act must be used as evidence when a person who needs to make a statement is unable to make a statement in the official ruling due to death, illness, or any other cause, and the preparation of such statement or documents must be made under particularly reliable circumstances. In light of the public nature of criminal procedure, the requirement of first is not denied because a person who requires a statement does not want to appear in the court, and if there are circumstances that the court cannot examine a person who needs the statement in the court, it shall be applied. Thus, even if a person who needs to make a statement has a certain residence, if the person fails to comply with summons of the court, and if it is impossible to examine him/her in the court because he/she is unable to execute the summons even if he/she has a certain residence, the requirement shall be deemed satisfied
Article 314 of the Criminal Procedure Act
Supreme Court Decision 85Do2788 Decided February 25, 1986
Defendant
Prosecutor
Attorney Lee Jae-jin
Seoul High Court Decision 88No2873 delivered on January 20, 1989
The judgment below is reversed and the case is remanded to Seoul High Court.
The court below found the defendant not guilty on the ground that each statement of the statement made by the public prosecutor and the judicial police officer in this case can be admitted as evidence only when the above merchant admitted the authenticity of its formation, unless the defendant consented to the admissibility of evidence. However, if the defendant cannot make a statement on the trial date due to death, illness, or any other reason, and the statement was made under particularly reliable circumstances, it can be admitted as evidence. In addition, the defendant does not agree to the admissibility of evidence, and it is difficult for the above above or above persons to be summoned several times for testimony by the court and the party members, and the court below refused the appearance on the trial date and ordered the above or above arrest of the above or above persons from the court and the party members, but it is impossible to hear the above or above statements on the trial date because the defendant's refusal to attend the trial on the above or above grounds cannot be admitted by the statement made by the above person who made the original statement, and it cannot be admitted as evidence for the reason that it cannot be admitted as evidence.
However, there should be two requirements that a person who needs to make a statement in order to use the protocol under Article 312 of the Criminal Procedure Act or the statement and documents under Article 313 of the same Act as evidence for the crime of death, illness, or any other reason and that the preparation of such statement and documents should be carried out under particularly reliable circumstances. The first requirement of the court below should not be denied because the person who needs to make a statement in light of the public nature of the criminal procedure does not want to attend the court at the time, and if there are circumstances that make it impossible for the court to examine the person who needs to make a statement in the court, it should be considered that such requirement is satisfied if the person fails to respond to summons of the court even if he had a certain residence and the suspect is unable to do so, and that the police officer's first time is more than 40 times the suspect's first time and more than 5 times the suspect's statement and the suspect's second time the suspect's statement and the second time the suspect's statement cannot be executed.
The judgment of the court below cannot be said to be an error of law that affected the conclusion of the judgment by the interpretation of Article 314 of the Criminal Procedure Act, and there is a ground for appeal by the prosecutor who pointed out this point.
Therefore, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-sung (Presiding Justice)