2017No630 A. Violation of the National Sports Promotion Act

(b) Habitual gambling;

(c) Violation of the National Sports Promotion Act;

1. A;

2. B

Defendants

An inception (prosecution) and an inception (public trial)

Attorney H (for defendant A)

Attorney AE (the national election for Defendant B)

Suwon District Court Decision 2015Ma3910 Decided February 10, 2017

August 11, 2017

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Defendant A

1) misunderstanding of facts or misapprehension of legal principles

In relation to the crime of violating the National Sports Promotion Act, the court below found the defendant guilty of all the charges against the defendant on the grounds of some protocol of interrogation of the suspect and witness B's testimony in the prosecutor's office against the defendant without admissibility, although the defendant made an illegal solicitation to the defendant B, who is a sports player, and promised compensation accordingly. The court below erred by misapprehending the facts or by misapprehending the legal principles which affected

2) Unreasonable sentencing

The punishment sentenced by the court below (one year of imprisonment, two years of suspended execution, and two hundred hours of community service) is too unreasonable.

B. Defendant B

1) misunderstanding of facts or misapprehension of legal principles

The judgment of the court below convicting Defendant A of an unlawful solicitation as to an athletic game and promising to receive the payment thereof, is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment.

2) Unreasonable sentencing

The punishment sentenced by the court below (one year of imprisonment, two years of suspended execution, and 120 hours of community service) is too unreasonable.

2. Determination

A. Judgment on the assertion on admissibility of evidence (Defendant A)

1) Examination protocol of Defendant A prepared by the prosecutor

A) Relevant legal principles

A protocol in which a public prosecutor made a statement of a suspect by the defendant, separate from its preparation procedure and method, that is, the fact that its content is the same as the statement before the public prosecutor, can be admitted as evidence. The same fact in this context means that the content of the statement must be stated as well as that of the statement that is not stated as if the content of the statement was not stated. In addition, inasmuch as the Criminal Procedure Act clearly distinguishess the preparation procedure and method of protocol and the establishment of substantial authenticity, and provides methods to prove that the defendant denies the actual authenticity of protocol, the recognition of actual authenticity by the defendant's statement should be based on the statement made by the defendant clearly at a preparatory hearing or during the public trial, and the fact that the defendant did not raise any objection to the actual authenticity, or that the preparation procedure and method of protocol are recognized, does not necessarily mean that the actual authenticity has been recognized (see Supreme Court Decision 2011Do325, Mar. 14, 2013).

On the other hand, even in cases where the defendant acknowledged the authenticity and voluntariness of the protocol of interrogation of the defendant prepared by the public prosecutor, and then submitted the protocol or documents, when the first statement recognizing the voluntariness of the statement in light of various circumstances, such as the contents of the protocol, the process of preparing the protocol, and the statement related to the crime in the court of the defendant, is deemed to be reliable, and the protocol of interrogation of the suspect concerned is still admissible (see, e.g., Supreme Court Decision 2004Do805, Apr. 23, 2004).

B) Determination

According to the records, the defendant's defense counsel submitted a "written opinion on evidence to the effect that he/she agrees to admit "a suspect examination protocol prepared by the prosecutor to the defendant" as evidence on the first trial date of the court below. The court below adopted the suspect examination protocol prepared by the public prosecutor as evidence, the suspect examination protocol prepared by the public prosecutor as to the defendant as to the defendant as part of the trial record is stated on the sixth trial date, and the court's opinion on the result of examination of evidence is stated on the above date that all the defendant and the defense counsel stated that they did not have any opinion on the result of examination of evidence. The defendant's defense counsel at the court of the court below submitted a written opinion on October 20, 2016, stating that he/she would withdraw the above consent

위 인정사실에다가 피고인도 피고인 B에게 "슛을 난사해 달라"는 취지로 말을 한 적이 있으나 이는 장난에 불과하였다는 취지로 진술하고 있는 점 등을 더해보면, 원심이 제6회 공판기일에서 피고인에 대한 검사 작성의 피의자신문조서에 대한 증거조사를 완료한 이상 그 후 피고인 또는 변호인이 성립인정의 의사표시를 철회하였다고 하더라도 피고인에 대한 검사 작성의 피의자신문조서는 이미 취득한 증거능력을 상실하지 않는다고 봄이 상당하고, 위와 같은 의사표시에 그 효력을 그대로 유지하기 어려운 중대한 하자가 있고 그에 관하여 진술인에게 귀책사유가 없다는 사정이 존재하지도 않는다(설령, A에 대한 검사 작성의 피의자신문조서가 증거능력이 없다고 하더라도, 검사가 제출한 나머지 증거들만으로도 원심이 판시한 바와 같이 피고인에 대한 이 부분 공소사실을 유죄로 인정할 수 있다). 피고인의 이 부분 주장은 이유 없다.

2) Partial statement of witness B

The defendant asserts that the testimony of Co-defendant B, who is an accomplice, was made in a state where litigation procedures are not separated, so the testimony in the original court of the witness B cannot be used as evidence for the defendant.

According to the records, the court below notified the decision that the pleading against the Co-defendant B should be tried separately to examine B as witness during the fourth trial date, and thereafter, the facts that B appeared as witness during the fourth trial date and testified after being sworn, and the court below notified the decision that the pleading will be joined again after the examination procedure of the witness as to B is completed (No. 408, 409 of the trial record). The above assertion by the defendant on the premise that the pleading against the Co-defendant B, who is an accomplice, was not separated.

3) Sub-determination

Therefore, the defendant's assertion on admissibility of evidence is without merit.

B. Judgment on the mistake of facts or misapprehension of legal principles by the Defendants

The Defendants also asserted that the lower court did not accept an illegal solicitation regarding sports events, such as the statement in the facts charged to the same purport as the grounds for appeal, and that there was no fact of promising property benefits. The lower court recognized the circumstances determined by the evidence duly adopted and investigated by the lower court and convicted the Defendants of the facts charged in this case. In light of the above evidence, the lower court’s determination is just and acceptable, and it does not err by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment. This part of the Defendant’s allegation on the grounds of unfair sentencing is rejected.

The lower court determined the sentence by comprehensively taking account of all the circumstances that led to the records and arguments of this case, including the following: (a) the Defendants’ habitual gambling, etc. committed by the Defendants through the illegal sports gambling site is a crime that undermines a speculative spirit and undermines a sound sense of labor; (b) the amount of gambling provided by the Defendants; (c) the number of times and period during which the Defendants participated in gambling and gambling; and (d) the Defendants, despite the fact that they have to have a more fair sports spirit; (b) thereby impairing the fairness of sports, which is the basis of sports; (c) thereby impairing the fairness of sports; and (d) promising the Defendants to make an illegal solicitation of sports; and (e) taking account of the poor quality of the crime; (d) the Defendants made confession and reflect part of each of the crimes of this case; (e) the Defendants were the primary offenders who had no record of criminal punishment; and (e) Defendant B did not have any record of criminal punishment for the same kind of crime; and (e) the Defendants’ age and character of the Defendants; and (e) the background and motive leading leading to the crime

In full view of all of the reasons for the sentencing of the lower judgment in the trial, the lower court’s sentencing cannot be deemed to have exceeded the reasonable bounds of its discretion, and there is no change in the sentencing condition that can be deemed unfair to maintain the lower court’s sentencing as it is. Therefore, the sentence of the lower court cannot be deemed to be too unreasonable. The Defendants’ assertion of unfair sentencing cannot be accepted.

3. Conclusion

Therefore, the defendants' appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since there is no reason to do so, and it is so decided as per Disposition.

The presiding judge, judge, fixed-road

Judges Hong-ju

Judges Kim Gin-young