The meaning of "other person than the defendant" under Article 316 (2) of the Criminal Procedure Act

According to Article 316(2) of the Criminal Procedure Act, when a statement made by a person other than the defendant at the preparatory hearing or at the trial date is the content thereof of a statement made by another person who is not the defendant, the person making the original statement may be admitted as evidence only when it is impossible to make a statement due to illness or any other cause, and the statement was made under particularly reliable circumstances. The term "other person who is not the defendant" mentioned above includes neither the third person nor the co-defendant nor the

Article 316(2) of the Criminal Procedure Act

Defendant

Defendant

Busan District Court Decision 84No1300 delivered on August 30, 1984

The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. On February 14, 1984, the judgment of the court of first instance (the court of first instance) concluded that the defendant was a woman with this spouse, and that the defendant was a woman with this spouse, at around 20:30 on February 14, 1984, who was aware of the fact that the defendant was a woman with this spouse, and that the court below maintained it.

2. To examine, in sequence, the available evidence to recognize the above fact by the record;

A. In the public trial and the public prosecutor examination of the first instance court, the defendant and the above defendants were in the room as stated in the above ruling on the date and time under the purpose of inter-party intercourse, but the defendant returned to the room and the house between the defendant and the head at the bath, so the defendant was not in a sexual intercourse, and thus the defendant denied the common relation.

B. A witness Lee-ok and Dong-ok were given testimony and statements in accordance with the above judgment in the court of first instance and the prosecutor's investigation, but all of them were from the defendant in the first instance trial.

According to Article 316(2) of the Criminal Procedure Act, when a statement made by a person other than a defendant at a preparatory hearing or during trial contains the contents of a statement made by another person other than the defendant, it shall be admitted as evidence only when the person making the original statement is unable to make a statement due to death, illness, or any other reason and the statement was made under particularly reliable circumstances. Here, the term "person other than the defendant" refers to neither a third party nor a co-defendant nor a co-defendant nor a co-defendant. If the statement is made in this case, it shall be interpreted that the defendant is a person other than the defendant at the first instance trial of the first instance who is not the defendant. Thus, in this case where the defendant denies the cross-conception in the first instance trial of the first instance, it does not constitute the time when the defendant who made the original statement is unable to make a statement due to death, disease, or any other reason, and thus the testimony and statement made by the defendant at the highest court of the first instance, the statement made by the

C. Although there are some circumstances, the judgment of the court of first instance is erroneous in finding the above criminal facts based on the above data, and the judgment of the court below which maintained the judgment of the court of first instance is also erroneous in finding the facts without evidence by violating the rules of evidence, and the judgment of the court below which affirmed the judgment of the court of first instance shall also be deemed to have committed the same unlawful acts. Thus, the

Therefore, the judgment of the court below is reversed and remanded, and it is so decided as per Disposition with the assent of all Justices involved.

Justices Jeon Soo-hee (Presiding Justice)