The meaning of "foreign residence" among the requirements for the recognition of admissibility of evidence under Article 314 of the Criminal Procedure Act even though a statement by a statement made by a person other than the defendant was not proven by the statement made in a court court. / Where a person who needs to make a statement resides in a foreign country and refuses to attend a court and expresses circumstances that he/she is unable to make an appearance while refusing to make an appearance, the procedure to be taken by the court for the application of Article 314 of the Criminal Procedure Act in cases where the address and contact address of the foreign country is identified and the international criminal justice cooperation treaty

In order to recognize admissibility of evidence pursuant to Article 314 of the Criminal Procedure Act, where a statement by a person other than the defendant, including a statement of a witness, has not been proven by the statement made in the court, it constitutes a case where the person who has made the statement is unable to attend the public trial and make a statement due to death, disease, residence abroad, unknown whereabouts, or any other similar cause, and where the preparation of documents is particularly reliable. The term “foreign residence” here means that the person who requires the statement is in a foreign country. In this context, the investigative agency’s hearing of the statement in the investigation process confirms the foreign residence and the possibility of future departure, and if it is probable that the person who made the statement is unable to make the statement by attending the public trial in the future due to such reasons as the person who has made the statement’s residence is in a foreign country or residing abroad for a long time after leaving the country, the contact point and contact method of the person who has made the statement is confirmed in advance at the time of departure, and even if the person has failed to appear in the public trial before departure or left the country to make the statement sufficiently available means to make the statement.

Furthermore, even if a person who needs to make a statement is residing in a foreign country and is unable to attend the public trial while refusing to appear in the public trial, the address or contact point of the foreign country where the person is living in the foreign country is identified, unless the person intends to refuse the testimony itself is clear, should first be examined whether a witness may be summoned pursuant to the procedure of the international criminal justice coordination between the relevant country and the Republic of Korea, and even if summons cannot be made, the procedure should be followed, such as requesting a witness to attend the public trial in the foreign court. It is difficult to view that such procedure is a case where the person who needs to make a statement is unable to attend the court even if it is possible and considerable means are different.

Articles 313 and 314 of the Criminal Procedure Act

Supreme Court Decision 2001Do5666 Decided March 26, 2002 (Gong2002Sang, 1044) Supreme Court Decision 2007Do1004 Decided February 28, 2008 (Gong2008Sang, 476)

Defendant

Defendant

Law Firm Haan, Attorney Park Jong-soo

Seoul Central District Court Decision 2015No2905 Decided October 23, 2015

The conviction part of the judgment below is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. In order to recognize admissibility of evidence under Article 314 of the Criminal Procedure Act even though a statement by a person other than the defendant, including a statement of a witness, was not proven by the statement made in the court court, the person who made the statement falls under cases where the person who made the statement is unable to appear and make a statement in the public trial due to death, illness, foreign residence, unknown whereabouts, or other similar causes, and where the preparation of the document is particularly reliable. Here, the term "foreign residence" is insufficient only to the extent that there is a person who requires the statement in a foreign country. In the course of an investigation, the investigative agency’s hearing of the statement and the possibility of departure is confirmed, and if it is probable that the person who made the statement is unable to appear and make a statement due to such circumstances as his/her residence in the foreign country or his/her stay in the near future for a long time, he/she shall be 200 days prior to arrival, place and method of stay at the time of his/her arrival, and shall be 20 days prior to departure from the court and shall be present at the court.

Furthermore, even if a person who needs to make a statement is residing in a foreign country and is unable to attend the public trial while refusing to appear in the public trial, the address or contact point of the foreign country where the person is living in the foreign country is identified, unless the intention of refusal itself is clear, and if the international criminal justice treaty is concluded between the relevant country and the Republic of Korea, it should first be examined whether to summon a witness according to the procedure under the international criminal justice coordination. Even if summons cannot be made, it should undergo the procedure such as requesting a witness to attend the public trial in the foreign court. It is difficult to view that such procedure entirely does not constitute a case where the person who needs to make a statement is unable to attend the court even if it is possible and considerable means are different.

2. A. In full view of the adopted evidence in the judgment of the court of first instance, the court below convicted each of the facts charged as to the uttering of a falsified document that the defendant acquired the money of the judgment by deceiving the victim non-indicted 1 and obtained the money of the judgment in collusion with the non-indicted 1 and that the defendant exercised one copy of the Australian citizen certificate against the "non-indicted 2 (Non-indicted 2)" under the name of the Minister of Justice of the Immigration Office of Australia, which is a private document concerning a forged fact-finding. The evidence of the judgment of the court of first instance cited by the court of first instance includes a copy of the statement and the set (hereinafter "statement, etc.")

B. However, according to the records, the first instance court adopted Nonindicted Party 1 as a witness at the request of the prosecutor, who did not consent to the defendant to use the above statement, etc. of Nonindicted Party 1 as evidence. In the application for the witness of Nonindicted Party 1 submitted by the prosecutor on February 27, 2015, the address of Nonindicted Party 1 is “○○ +○○○○○, ○○○-○○-○○-○○-○○○○, etc.,” and the contact details are specified as “○○○○○○○○-○○-○○-○○○○.” Even though Nonindicted Party 1 submitted the “written reasons for non-appearance” on March 10, 2015, Nonindicted Party 1 did not deliver a summons of witness to Nonindicted Party 1 to the court of first instance. ② The above reasons for non-existence Party 1’s absence are currently residing in the court of first instance, and it is entirely impossible for the court of first instance to adopt the witness of Australia for three years or more.

C. On the other hand, in light of the aforementioned legal principles, the above written statement, etc. prepared by Nonindicted 1 constitutes “when a person who needs to make a statement on the trial date is unable to make a statement due to his/her residence abroad, etc.” and it is difficult to view it as evidence admissibility pursuant to Article 314 of the Criminal Procedure Act. The remaining evidence except this is insufficient to recognize the fraud of Nonindicted 1 among the facts charged in the instant case and the facts charged as to the uttering

Nevertheless, based on the premise that the above written statement, etc. prepared by Nonindicted Party 1 is admissible as evidence under Article 314 of the Criminal Procedure Act, the court of first instance and the court below maintained the judgment that found the Defendant guilty of the fraud of Nonindicted Party 1 among the facts charged in this case and of the exercise of the above investigation document, which affected the conclusion of the judgment by misapprehending the legal principles on Article 314 of the Criminal Procedure Act. The Defendant’s ground of appeal

3. Scope of reversal

On the other hand, among the judgment of the court below, one sentence was rendered at the court below on the ground that the part on fraud against the victim non-indicted 1 and the use of a falsified investigation document are concurrent crimes with the remaining guilty part under the former part of Article 37 of the Criminal Act, and the guilty part of the judgment

4. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part of the judgment below guilty is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)