Act on the Punishment, etc. of the Use of Symmetric 805 Existing Buildings, Attempted Fire Prevention, and Fire Fighting Disease, etc.

violation of applicable rate

A

Inducement leaps (prosecutions) and Kim Jong-hun (Trial)

Attorney B,C

April 25, 2014

The defendant shall be innocent.

The summary of the judgment of innocence against the accused shall be published.

1. Summary of the facts charged in this case

[Status of Defendant]

The defendant currently belongs to "G, which is a youth organization under the F of the D organization (hereinafter referred to as "E").

【Criminal Facts】

E announced the H Report on April 19, 2013, it began to continuously develop the so-called ‘I case'. From April 17, 2013 to April 19, 2013, the young people with whom the name of E cannot be known during the period from April 17, 2013 to April 19, 2013, put up one person's demonstration in Seoul Special Metropolitan City, Nowon-gu.

On May 5, 2013, in collusion with a person whose name is unknown, the Defendant sent the surrounding area in front of K House at around 06:20 on May 5, 2013, and sent an opportunity to do so by using a cresh in which there is no other person in front of K House, and then thrown the structure in which K and his/her spouse are present, and then thrown the structure to the inside of the wall, thereby extinguishing the structure into the ground, but at the same time, the Defendant did not go to the wind that is naturally inflammable, and did not go to the end, and at the same time, did not cause danger to human life, body, or property by using a flame disease.

2. In order to prove the facts charged in the instant case, except for the evidence investigation agency’s internal document 1, warrant for compulsory investigation, and other relevant documents 2), the evidence submitted by the prosecutor to prove the facts charged in the instant case is as follows.

○ Examination of N,O, P

○ Inquiries into Samsung Card Co., Ltd.

The respective statements of Q Q, R, S, T, U,V, W, X,Y, Z, AAB, AC, AD, AE, AE, AF, AH, AI, AJ, AK, BK, BM, BN, and BO

OP Each appraisal report (in English), each appraisal report (Korean) and each appraisal report (Korean translations), and Q’s appraisal report;

○ Each request for appraisal, each seizure report, and response to the details of financial transactions

○ Digital Evidence Analysis Report, each Evidence Analysis Report, and Digital Evidence Analysis Report

O CDs (CCTV video files (hereinafter referred to as “instant CD”).

○ Details of access by the occupying household (excluding the part thereof), family relation certificate, resident registration copy or abstract, telecommunications data processing system, telephone call details, use of credit cards, Internet access records, each Internet output, each photograph, account transaction details, credit card transaction details, and village bus route map.

The primary evidence for the recognition of the instant facts charged, among the evidence of ○○○ criminal history records or more, is the CD in which the Defendant began his residence on the day of the instant crime and returned back to the said K house in order. The Defendant’s primary argument is that the video files contained in the CD are inadmissible, and the Defendant’s primary assertion is that there is no evidence of each of the evidence, including the video files contained in the CD, and then first, it appears that the admissibility of each of the evidence, including the video files contained in the CD, can be determined, and the remainder of the evidence except the inadmissible evidence can be admitted solely for the remainder of the facts charged.

3. Probative value of a video file contained in the CD of this case

A. Whether it violates the rules of exclusion of illegally obtained evidence

(1) Whether the Personal Information Protection Act is violated

A) Provisions of the law

Where the Personal Information Protection Act specifically permits a crime, if necessary for the prevention and investigation of a crime, it is prohibited in principle to install and operate visual data processing devices in a public place except for traffic control and the collection, analysis, and provision of traffic information (Article 25(1) of the Personal Information Protection Act); and the operator of visual data processing devices must not arbitrarily manipulate visual data processing devices for any purpose other than the intended purpose of installation of visual data processing devices or shoot other locations (Article 25(5) of the Personal Information Protection Act). CCTV is treated as one of visual data processing devices governed by Article 3(1) of the Enforcement Decree of the Personal Information Protection Act. The purpose of installation of CCTV is limited pursuant to Article 25(1) of the Personal Information Protection Act that restricts installation and operation of visual data processing devices. Pursuant to Article 25(5) of the Personal Information Protection Act, the CCTV operator is limited to the limited purpose of installation of CCTV devices.

B) Violation of the Personal Information Protection Act in the establishment

Each of the files contained in the CDs in this Court’s statement. According to each of the files contained in the CDs in this case, the files Nos. 1, 3-9, 12, 13, 17, 18, 20, 21, 24, 31-35, 39, 40, 43-45, 49-52, among the files contained in the CDs in this case, the files Nos. 2, 10, 19, and 23, including CCTV images installed in a store or around a house, are hard to be seen as having violated the aforementioned CCTV Protection Act for the following reasons: (a) it is difficult to view that the CCTV files were installed in the street or school, and (b) it was installed in a non-permanent area or a bus file installed in a non-permanent area; and (c) it is difficult to view that each of the above CCTV files was installed for the purpose of preventing traffic information of each of the Defendant, including the aforementioned video images installed in front or around 15.

C. Violation of the Personal Information Protection Act in use

According to each statement in the record of each verification in this court, each CCTV device that photographs each of the above files is recognized to have taken only the location of the CCTV device focusing on a certain place to achieve its purpose, and no other data exists to deem that the manager of eachCCy arbitrarily operated the CCTV device or taken other locations by CCTV device. Accordingly, the above CCTV image does not violate Article 25(5) of the Personal Information Protection Act.

(2) Whether the warrant requirement or due process principle is violated

(A) Each of the statements made by AM, AL, AO, AP, Q, and AR among the 4th trial records, the witness AT, AU, AV, AW, AY, AZ, BA, BA, BC, BD, and BE in the 8th trial records, the witness AL, BH, BF, and BG’s respective statements made in the 9th trial records, the copy of the files made in the 11th trial records, the witness N, P,O, and AS’s respective statements made in the 3th trial records, and each of the files contained in the CDs in the 14th trial records were re-written by the investigative agency, with the 1-8, 13, 17, 230, 36-36, 39-4, 40-5, 40-5, and 54, and each of the CCTV files stored in the 1-6th trial records.

B) Since an investigative agency’s voluntary submission from the owner or custodian of a video file can be conducted without a warrant without going through a special procedure, even if the duplication process was not taken or the observer’s signature was not confirmed, it cannot be said that the investigative agency illegally collected the duplication file.

In addition, since the re-recording file of this case is nothing more than the production of a new original by an investigative agency, it is reasonable to view that the legitimate owner of the video file is an investigative agency that has taken the photograph. Therefore, any special procedure is not required inasmuch as the consent of the owner of the CCTV is obtained in the re-recording of the original CCTV image. Thus, it cannot be said that the investigative agency illegally collected the re-recording file of this case.

(b) Identity and integrity;

(1) Relevant legal principles

(A) In order for documents printed from a digital storage device to be used as evidence, the identity of the documents stored in the digital storage device should be recognized. In order to acknowledge its identity, it should be ensured that the original of the digital storage device has not been changed to the printing out of the documents after the seizure of the digital storage device. In particular, in a case where documents were printed out from a medium of ‘sadrid' or ‘sadrid' in place of the original digital storage device in order to prevent any change in the original of the digital storage device, the identity of the documents should be recognized between the original of the digital storage device and the original of the digital storage device, and the ‘sadrid' or ‘sadrid' media. Furthermore, in order to verify the identity of the documents stored in the digital storage device and the documents printed out, the document should be recognized as having the expertise and technical ability of the operator of the computer used in the process of identifying the identity of the documents stored in the digital storage device, and the document should be recognized as having the credibility and accuracy of the documents stored in the digital storage device as evidence (see Supreme Court Decision 2007Do2717.

B. Although the copy is not admissible as a copy, the requirement of ‘equality and integrity' in digital evidence is more strongly required due to the vulnerability to manipulation of digital evidence, independence of media, expertise in collection and analysis procedures, and simplification of duplication. Such requirement of ‘equality and integrity' is equally required when not only documents printed from digital storage media but also documents printed in digital storage media have been copied in any form, and if this requirement is not satisfied, the digital evidence may not be admitted as admissibility.

(2) It is sufficient to objectively and reasonably determine the method and criteria for determining integrity and identity by comprehensively taking into account all the circumstances, such as the execution of a warrant of search and seizure or the statement of relevant persons, including investigators or digital forensic experts, etc. who participated in the execution of a warrant of search and seizure regarding integrity, copying of digital evidence, and verification of the status of seals or re-sealeds, and it does not necessarily require verification procedures, such as reproduction of the video recordings recorded during the search and seizure process.

(p) On the other hand, it is difficult to require strict procedures such as the execution of a warrant in cases where digital evidence has been seized upon voluntary submission by the owner, possessor, or keeper, not by the execution of a warrant of seizure and search. However, in the case of voluntary submission, the original shall be seized after obtaining confirmation from the presenter that the original was not fabricated even if a simplified procedure is taken in comparison with the execution of the warrant, and in the case of duplication, etc., the copy thereof shall be sealed by the court at least to the extent that there is no reasonable doubt about the integrity thereof.

다 동일성에 대한 입증은 기본적으로 원본과 사본의 해쉬값6) 비교를 통하여 원본과 사본의 동일성을 확인한 후 사본과 출력물 등의 동일성을 검증하는 방법 등으로 판단하면 될 것이나, 한편 위 동일성과 표리(表裏)의 관계에 있는 무결성(보관의 연속성)이 담보되는 한, 반드시 동일성 입증을 위하여 해쉬값을 비교 확인하는 절차가 요구된다고 할 수 없고, 법정에 제출된 원본과 사본의 출력 · 재생한 결과물 등을 직접 비교한 검증결과 등 제반사정을 종합하여 그 동일성 여부에 관하여 자유심증주의에 따라 객관적이고 합리적으로 판단하면 된다.

Even if the original is extinguished later, the identity of the original and copy can be verified compared with the piracy value of the original, in cases where there is a prompt and reliable value of the original extracted in advance. However, even if proof of the identity of the original and copy is not completely impossible, unless it is revealed that there is no trace of artificial alteration through the appraisal, etc. of the copy files, the identity cannot be recognized solely on the result of the investigator’s statement and the verification of the copy of the copy, etc., who participated in the reproduction of the file, unless it is revealed that there is no trace of artificial alteration.

Although such integrity and identity constitute the requirement of admissibility of digital evidence, the prosecutor must specifically assert and prove the existence of such evidence. However, since they are related to facts in the lawsuit, it is sufficient to prove without any strict proof (see Supreme Court Decision 2000Do1743, Sept. 4, 2001).

(3) The issue of the files reproducing the original image file reproducing

(a)in the case of a video file reproducing the reproduced image, the original copy of the re-recording, which, in itself, has the nature as a copy of the original image which has been reproduced from the perspective of being a substitute for the original CCTV images which have been produced as original evidence.

B. In the instant case, it cannot be deemed that the original file, based on the original CCTV device, has been reproduced by electronic means in relation to the original CCTV image, and thus, its identity and integrity with the original CCTV image at issue in digital evidence cannot be deemed as a requisite for admissibility of evidence. Therefore, if the original copy so reproduced is premised on the premise that the condition of reproduction and photographing of CCTV images were recorded as is, and that the contents of the tape or video file were not artificially fabricated, its admissibility may be recognized unless there exist any other unlawful grounds.

Therefore, even if the original CCTV image has already been extinguished, if it is reasonably proved that it is impossible to submit the original CCTV image to the court, and that it did not have any relation to the case and any artificial manipulation with the images reproduced due to the statement of the photographer and the seater, the submission of re-recording equipment, and the contents and condition of re-recordinged images, etc., the admissibility of evidence should be recognized.

C. However, it is reasonable to recognize the integrity and identity between the original copy and the original copy of the re-recording, separate from whether it is admissible as evidence between the original copy of the CCTV and the original copy of the re-recording, as the re-recording file of this case was copied by electronic means of the original copy of the re-recording of the mobile phone. This is sufficient to prove that the method of determining the integrity and identity of digital evidence, such as the foregoing.

(4) In the case of this case, each of the statements of the witness, AL, AM, NO, AO, AP, Q, AP, AS, ATS, ATS, AV, AW, AAE, AZ, AZ, BA, BA, BB, BD, BF, BG, B, and BI in each of the following facts and circumstances are acknowledged.

○ The investigator, a witness, BH, BF, and BG collected the images submitted by the CD of this case after editing the necessary parts of the original image files stored in the CCTV storage device and then copying them to the USB by the investigator, and then reproducing the files stored in the said USB to the computer of the investigator, the CCTV manager extracted the parts designated by the investigator, and then transferred the video files to the investigator to the investigator on the e-mail, and then the investigator downloaded them to his own computer, or used them for investigation by copying the files stored in the CCTV, respectively, to the investigator’s cell phone camera, and then copied the files stored in the CCTV for the convenience of evidence submission and investigation after the prosecution was instituted.

0 With respect to whether the CCTV images were confirmed, reshoted, and the copy of original files were present at the time, the owner or manager of some CCTV devices stated that he was present at the time. However, in the case of some owners or managers, he stated that he was not present at the confirmation and duplication of the images on the ground of bad duties.

With respect to the instant reproduction file, the investigators did not take measures to recognize that the original file stored in the CCTV storage device was copied in a state where the original copy of the CCTV storage device was not changed, such as sealing the original copy of the CCTV storage device, etc., and did not receive confirmation from the owner or manager of CCTV to confirm it, and did not take measures to seal his/her own USB copied file.

○ In relation to the re-recording file of this case, the investigators deemed to have re-recording the images reproduced by each CCTV device without any special manipulation by the investigators. However, the investigators did not obtain a confirmation from the owners or managers of CCTV to confirm it, and did not take a sealing measure against the aforementioned re-recording cell phone camera, etc.

○ When the reproduction files and re-recording files of this case were reproduced in the USB or cell phone storage device in the USB or mobile phone camera storage device, the investigator’s seal on the storage device of the copied investigator’s computer was not taken.

○ At present, each original image or file stored in each of the above CCTV was automatically deleted and extinguished due to the excess of the CCTV storage device capacity. Moreover, the storage device of the mobile phone camera that respied the original file or the original image was not submitted to this Court.

○ The investigators did not separately receive education on the collection of digital evidence, and did not extract and record the piracy value of the CCTV original video files with respect to the reproduction files of this case, and did not record the piracy value of the original video files stored in the mobile phone camera with respect to the reproduction files of this case.

○ The National Scientific Investigation Institute, upon receipt of an appraisal as to whether the files contained in the CD of this case were fabricated, shall have a comparison file with the files provided by a video recording device or a video recording device that produces screen pictures, or by a similar device that produces screen pictures, and may analyze the structure of the video files compared to the files contained in the CD of this CDs. Such comparison files do not exist, and in the case of a file that photographs a monitor in which screen pictures are reproduced, the video is not in the form of the original data. In some files, the video would not have an original data form. As such, the National Scientific Investigation Institute sent the video to the process of gathering and reproducing it from the interview-only. Accordingly, it was not possible to determine whether each of the above images could be fabricated or operated.

B. In full view of the aforementioned circumstances, the investigator’s computer from the original CCTV storage device to the USB of the investigator (the files submitted as electronic mail shall be the computer of the investigator immediately from the original CCTV storage device) and the investigator’s computer to the CD at least 2 to 3 times, and the investigator did not seal all the storage device containing each file from the computer of the investigator, so it is possible for the investigator to have access to each file without any restriction. Therefore, the integrity of the duplicate file cannot be recognized solely on the statement of the CCTV owner or manager who was present in part or part of the duplicate file. Moreover, since there is no hard value extracted from the original file, and since the duplicate file of this case cannot be confirmed solely on the basis of its original file, it cannot be recognized that the duplicate files of this case were identical to each of the above original files.

(C) In addition, the re-recording file of this case was copied twice from the investigator’s computer to the computer of the investigator, and from the investigator’s computer of this case, the investigator’s computer of this case, and it was possible for the investigator to access each file without any restriction because the investigator did not seal any storage device in the process of duplication, and the investigator did not seal each storage device in the process. Thus, the integrity of the re-recording file of this case cannot be recognized only by the statement of the CCTV owner or manager who was present in the investigator or the CCTV owner who was present in the filming.

In addition, even if the investigator, CCTV owner, and manager’s statement, and even if it is recognized that the CCTV files were reproduced without any special manipulation, through the verification of the re-recording files of this case, even if they were not submitted, the original files of re-recording do not have been extracted, and there is no hard amount to be extracted, and the copy files can not be evaluated as to whether or not the re-recording files of this case can be changed or changed. The identity of the re-recording files of this case stored in the investigator’s mobile phone camera and the re-recording files of this case stored in the CD of this case by the investigator’s statement and the verification of the re-recording files of this case by the court cannot be recognized. Accordingly, the re-recording files of this case cannot be admissible as it is impossible to recognize the integrity and identity.

4. Other inadmissible evidence.

(a) Provision of communication data (Evidence document No. 278); and

Unless it is acknowledged that the contents of the above provision of communication data are personal information of the defendant and the consent of the defendant or fall under the grounds of Article 17 (1) 2 of the Personal Information Protection Act, an investigative agency shall, in principle, obtain the above documents through a warrant issued by the court pursuant to Articles 219 and 106 (3) of the Criminal Procedure Act. However, there is no consent of the defendant as to the submission of the above information from the SK Telecom, and there is no fact that the investigative agency has obtained prior approval or issuance of a warrant after the fact that it is being issued by the court. Thus, the above provision of communication data is inadmissible as illegally collected evidence.

(b) Each appraisal statement of Q Q (Evidence No. 1954 of the Evidence Record), each appraisal statement of Q, each (English), and (Korean translations);

B Q’s appraisal report is a document stating that Q Q, a judicial police officer, made the statement of BP and written the statement of a person other than the defendant. Each appraisal report of BP is a written statement in which BP’s statement is written. Each of the above evidence is inadmissible since the defendant did not consent to use it as evidence and the authenticity of establishment was not recognized by the statement of BP, the original person making the statement.

C. Parts 2109 to 2113 of the report on results of digital evidence analysis (Evidence Records No. 2098)

This part is a document stating the statement of a person other than the defendant, without the consent of the defendant as evidence, and without the signature and seal of the person who prepared it, it is not possible to identify the person who prepared it (N who prepared a digital evidence analysis report, which is the original document attached thereto, stated that the above part was not prepared by the person in question), and it is not admissible as evidence because the authenticity of the formation is not recognized by the statement of the person who prepared it.

5. Whether the evidence duly adopted and the facts charged can be recognized;

(a) Evidence duly adopted;

○ Each statement of witness N,O and P in the 11th trial records

○ Samsung Card Co., Ltd.’s inquiry reply

(O) Each statement in the statement of Q Q, R, S, T, U,V, W, X,Y, Z, AAB, AC, AD, AE, AF, AH, AH, AJ, AK, BK, BL, BN, and BO.

○ Each request for appraisal, each seizure report, and each statement on the response to the details of financial transactions

○ Each statement of digital evidence analysis report, each evidence analysis report, and digital evidence analysis result report

○ Details of perusal by the relocated household (excluding the part thereof), family relation certificate, resident registration copy or abstract, telephone call details, use of credit cards, Internet access records, each Internet output, each photograph, account description, credit card transaction, credit card transaction, and village bus route description, respectively.

○ Statement of Criminal Records Investigation Board

B. Whether to recognize the facts charged of this case

위와 같이 적법하게 채택되어 조사한 증거에 의하면, ① 피고인이 국정원의 선거개입 의혹을 강하게 제기하였던 E 소속인 사실, ② 피고인이 사건 당일인 2013. 5. 5. 01:11경 영등포역에서 대림역으로 가는 버스 등을 휴대폰으로 검색하였다는 사실, ③ 피고인이 사건 전날인 2013. 5. 4. 17:00경부터 2013. 5. 5. 12:00경까지 자신의 휴대폰을 전혀 사용하지 아니한 사실, ④ 피고인이 2013. 5. 5. 20:35경 인터넷에서 'K'이라고 검색한 사실, ⑤ 피고인이 수사 개시후인 2013. 5. 22. 자신의 테뷸릿 컴퓨터인 '갤럭시탭' 메모리를 초기화시킨 사실 등을 인정할 수 있다. 그러나 위 인정사실만으로는 피고인이 이 사건 범행을 저질렀다는 사실을 인정하기에 부족하고, 달리 이를 인정할 만한 증거가 없다.

6. Conclusion

Thus, the above facts charged constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the purport of innocence is publicly announced under Article 58 (2) of the

The presiding judge, the senior judge;

Judges Yang Sung-tae

Judges Shin Young-ju

1) Request for cooperation (Evidence No. 262), delivery (Evidence No. 999), request for analysis of evidence (Evidence No. 102 pages)

(ii) a warrant of search, seizure and verification (after-the-date), a request for provision of confirmation data (Evidence No. 1025), a permit of provision of confirmation data (Evidence No. 407), each warrant of search, seizure and verification (Evidence No. 1389, 1421, 3937), a warrant of search, seizure and verification (Evidence No. 3940, 4081).

3) Verification of witness AL, AM, N, AO, AP, Q, AP, AS, ATS, AU, AW, AX, AZ, AZ, BA, BB, BD, BE, BE, BF, BG, BH, and BI for each newspaper of the National Scientific Investigation and Investigation Service, the certification of CD (CCTV) by the Defendant’s each certification (Evidence Record Nos. 1022, 1429, 141), 4), the Defendant’s each certification (Evidence Record No. 1033, 2048), related appraisal cases (English, translation (Evidence Record No. 203, 2048), and BI’s each translation confirmation (Evidence Record No. 2046, 2085).

5) For convenience, the file numbers assigned by investigative authorities and referred to in the verification.

6) Hash Val value: A kind of digital fingerprint formed on a file (in combinations with numbers and an English Alphaba 32 persons), which has a completely different value from 1bit of the original data, may be deemed to be the same as two files if this value is equal.