Evidence of the suspect examination protocol prepared by the prosecutor

[1] Article 312 (1) of the Criminal Procedure Act

Supreme Court en banc Decision 2002Do537 Decided December 16, 2004 (Gong2005Sang, 173) Supreme Court Decision 2004Do6646 Decided January 14, 2005 (Gong2005Sang, 347)

Defendant

Defendant

Seoul Eastern District Court Decision 2004No1217 decided May 17, 2005

The appeal is dismissed. 80 days out of detention days after the appeal shall be included in the original sentence.

1. According to the main text of Article 312(1) of the Criminal Procedure Act, a protocol in which a prosecutor makes a statement of a suspect or a person other than a suspect shall be admitted as evidence only when it is recognized to be genuine by the person making the original statement at a preparatory hearing or during a public trial. Here, the authenticity of its formation refers to both the formal authenticity of the protocol, such as seal, signature and seal, and the actual authenticity that the protocol is written as stated by the person making the original statement (see Supreme Court Decision 2004Do6646, Jan. 14, 2005, etc.).

According to the records, co-defendants of the first instance court made confession of all facts charged of perjury to himself on the first instance court date, and the first instance court decided and notified that the above facts charged are to be tried by a summary trial procedure only for the above facts charged against co-defendants of the first instance court. Accordingly, in order to prove the facts charged against the co-defendants of the first instance court, the co-defendants of the first instance court shall be deemed to have consented to the admissibility of evidence without making a separate statement in order to prove the facts charged against the co-defendants of the first instance court. On the other hand, the prosecutor submitted the second examination protocol as to the co-defendants of the first instance court prepared by the prosecutor to prove the facts charged against the defendant on the first instance court date and presented his opinion that the defendant does not consent to the admissibility of this document as evidence. However, the first instance court may find that the interrogation protocol as to the co-defendants of the first instance court prepared by the prosecutor is inadmissible in light of the above legal principles, and therefore, it cannot be admitted as evidence and it cannot be admitted to the judgment of the first instance court.

However, in light of the records, the above interrogation protocol of the first and the third examination protocol of the first instance court prepared by the prosecutor as well as the written statement prepared by the co-defendant of the first instance court as well as the written statement prepared by the co-defendant of the first instance court, except all the evidence that the co-defendant of the first instance court failed to make a statement on the authenticity of its establishment on the trial date or the preparatory hearing date, and its admissibility can be sufficiently recognized even with the remainder of the evidence duly adopted and investigated by the first instance court and the court below. Thus, the above mistake of the first instance court and the court below did not affect the conclusion of the judgment, and therefore, the argument in the grounds of appeal

2. In full view of the evidence duly adopted and examined by the first instance court and the lower court except all the interrogation protocol of the co-defendant with respect to the co-defendant with no admissibility of evidence and the written statement of the co-defendant in the first instance court, it is sufficient to recognize the facts charged in this case that the defendant instigated the co-defendant in the first instance court and caused him to give a perjury. Therefore, the lower court’s maintenance of the first instance court’s judgment against the defendant as the crime of perjury is justifiable in its conclusion and there is no violation of the rules of evidence,

3. Therefore, the appeal shall be dismissed, and a part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)