(영문) 서울중앙지방법원 2018.8.23. 선고 2017재고합48 판결

The defendant, who was employed by the two comprehensive construction company and worked as a technician at the site of the hotel construction company located in Singapore from September 16, 1981, was a person who had been working as a technician at the site of the hotel construction company located in Singapore, and was willing to escape from North Korea after he was aware of various state secrets he had become aware of through the east of North Korea, with the pain of the workplace and the east of North Korea from the past.

A. On October 1, 1981, the Defendant, at around 14:20 on October 1, 1981, stated that, by calls from the North Korean Embassy located in Singapore, the male employees in the name-discepted in the Republic of Singapore are laborers in Seoul, and obtained consent to visit the Embassy of North Korea. Accordingly, the Defendant contacted with anti-government organizations’ members.

B. At around 14:30 on January 1981, 1981, and around the above F apartment, the Defendant boarded in black taxi near the above F apartment, and passed through the meeting of the Embassy of North Korea located at 15:00 Round 37 on the same day. Accordingly, the Defendant escaped from the area under anti-government organization. At around 15:00, the Defendant entered the above North Korean Embassy as the above North Korean Embassy, and went to the area under anti-government organization. At around 15:00 on October 1, 1981, the Defendant, as well as male personnel of the North Korean Embassy of North Korea, stated that he was born, grown, family relations, and the details of employment in Singapore depending on the food of the above staff, and subsequently, the Defendant respondeded the status of construction businesses of the Republic of Korea, military service companies of the Republic of Korea, military service companies of the Republic of Korea, and military secrets of the Republic of Korea, and the Defendant testified out the politics and economy of the Republic of Korea.

D. While the Defendant talks about the methods of escape from North Korea at the time and place described in the above paragraph (c) above, the said employee suspended the plan when it is likely to interfere with the implementation process, and found it at the Embassy of the Republic of Korea to go to the Embassy of the Republic of Korea due to an error in language communication with a local taxi driver, and immediately returned to the Embassy of the Republic of Korea, and disguisedly surrenders to go to the Embassy of the Republic of Korea, and subsequently returned to the Embassy of the Republic of Korea, and then returned to the Embassy of the Republic of Korea for a long time to prepare for a determined period of time after returning to the Embassy of the Republic of Korea. The Defendant, at around 11:00 on October 23, 1981, entered the Embassy of the Republic of Korea on the third floor of the above 3rd apartment of the Republic of Korea, requested an interview from the Embassy of the Republic of Korea to the Embassy of the Republic of Korea, and the Defendant came to go to the Embassy of the Republic of Korea on 10th of Korea to the Embassy of the Republic of Korea.

2. Determination of the original judgment and decision on commencing a retrial

A. On August 23, 1982, the Seoul Criminal District Court rendered a judgment subject to a retrial that the Defendant was guilty of both the above facts charged and sentenced to seven years of imprisonment and suspension of qualification for the Defendant. Although the Defendant appealed with Seoul High Court 82No2580, the Defendant was sentenced to a judgment dismissing the appeal on December 28, 1982, the judgment of retrial became final and conclusive on February 14, 1989, by waiver of the right to appeal by the Defendant. The Defendant completed the execution of the sentence in accordance with the judgment of retrial on February 14, 1989.

B. On November 7, 2017, the Defendant filed a petition for a retrial on a judgment subject to a retrial. On February 21, 2018, this court rendered a decision to commence a retrial on the grounds that there were grounds for retrial under Article 420 Subparag. 7 and Article 422 of the Criminal Procedure Act in the said judgment.

3. Determination

A. Summary of the defendant (Appellant for retrial) and defense counsel's assertion

Defendant suspected of having supplied to the scene of Singapore and tried to report to the Embassy of the Republic of Korea to the Embassy of the Republic of Korea, due to the mistake of a taxi engineer, and led to the mistake of the Korean Embassy of the Republic of Korea to the Embassy of the Republic of Korea, and did not have any espionage act, etc. like the facts charged. The Defendant, on February 17, 1982, was issued a warrant issued on March 8, 1982 and was detained for a long time without a detention warrant until executed on March 10, 1982, and was subject to harsh acts such as adviser and violence during the course of investigation. Under this circumstance, the confession statement made by the Defendant is inadmissible. The other evidence is inadmissible because it is an illegally collected evidence or hearsay evidence, and thus, the facts charged in this case constitutes a case without proof of a crime.

B. Determination on the admissibility of the evidence submitted by the prosecutor

1) Evidence relationship

The evidence presented by the prosecutor to prove the facts charged of the instant case (1) written statement of the Defendant

[Evidence List No. 6] Each police interrogation protocol (No. 16), each prosecutor's protocol of suspect interrogation (No. 16), each prosecutor's interrogation protocol (no. 1), semi-written statement of prosecutor's office (no. 9), ② The prosecutor's protocol of prosecutor's statement (no. 3), the police protocol of prosecutor's office (no. 4), J, I. K, L, M, H, N, and 0 statements (no. 7, No. 8, No. 10 through 14, No. 31), P's explanatory records (No. 15), ③ the evidence No. 1 (No. 5), police investigation records, each investigation report (No. 17 through No. 20, No. 222), the investigation report (No. 21), the suspect's environment (no. 23, No. 238, No. 325, Dec. 37, 2013), and the Seoul High Court No. 2013.

2) Determination on admissibility of evidence

A) Illegal confinement and illegal investigation against the defendant

(1) Comprehensively taking account of the following facts and circumstances acknowledged by the evidence examined by this court, it is recognized that the Defendant, who was forced by the investigators belonging to the National Security Planning Department, was investigated in a state of illegal detention in the National Security Planning Department without a lawful warrant for 22 days from February 17, 1982 when the warrant was executed until March 10, 1982 when the warrant was executed, was forced by the investigators belonging to the National Security Planning Board, and was forced by the investigators belonging to the National Security Planning Board to make a confession even after being detained under the warrant, and was subject to a disposition prohibiting meeting without legal basis.

① Around 17:10 on February 17, 1982, the Defendant was involved in the military without a warrant by the investigator of the National Security Planning Department. The Defendant’s detention warrant was issued on March 8, 1982 and executed on March 10, 1982. The Defendant stated that the Defendant’s identification card (Evidence No. 4-1) of the Defendant was “in the National Security Planning Department” and there is no evidence to deem that the Defendant was released before March 10, 1982 when the warrant of detention was executed (the Defendant returned from this court to the National Security Planning Department from February 17, 1982 to the execution of the warrant of detention). The Defendant prepared a total of four statements during the period of illegal detention, and was examined five times in total.

② According to the fact-finding (Evidence Nos. 4-2, 4-4) (Evidence List of Defendants 4-2, and 4-4), the investigator of the National Security Planning Department at the time, upon request of a public prosecutor for an investigation, was investigated by the Defendant who was detained on seven occasions between March 12, 1982 and August 31, 1982, and at the time, the investigator discussed the Defendant as follows.

1982.3. 12.- - “Neman’s best to see that it is very important.” - “Neman’s 1 to see that she shall also undergo an investigation.” - on March 15, 1982 - “I know the name of the counsel,” - on March 17, 1982 1982 - “I do not know that she will do so to the counsel,” and “I do not know that she will use 17.0 p.m. to 8 p.m. public prosecutor’s office,” and “I do not know about 8 p.m. 9 p.m. to see that she will have no choice but to see how much she will write 8 p.m. to us without knowledge about her case.”

③ On the other hand, there is no evidence to deem that the court’s decision was made with regard to the prohibition of meeting with the defendant from March 10, 1982 to May 19, 1982.

B) Evidence without admissibility (1) each written statement of the accused, each police interrogation protocol of the accused, each police interrogation protocol of the accused, and each written statement of the accused prepared by the accused at the police investigation stage of the police investigation stage are denied by the accused, and all of them are inadmissible.

(2) Each prosecutor's protocol of interrogation of the defendant

In a case where the defendant made a confession without voluntariness due to cruel acts in an investigative agency prior to the prosecutor’s investigation agency, including adviser, etc., and thereafter made a confession of the same contents even at the prosecutor’s investigation stage, even though there was no coercion to make a confession prior to the prosecutor’s investigation stage (see, e.g., Supreme Court Decision 92Do2409, Nov. 24, 1992). The purport of denying the admissibility of a voluntary statement lies in not only where the statement made before the prosecutor’s investigation agency prior to the prosecutor’s investigation agency is likely to cause misunderstanding because it does not fit the substantial truth, but also preventing in advance that the statement made under the circumstances where there is a risk of causing or coercion a false statement, thereby infringing on the basic human rights of the person who made the statement, and thus, it is necessary for the prosecutor to prove reasonable and detailed facts to suspect voluntariness, but to remove the question of voluntariness.

In light of the aforementioned circumstances, there is sufficient reason to suspect that the Defendant’s statement of confession of the facts charged at the prosecutor’s office was made in the state of continuous hearing due to the prolonged illegal confinement, etc., and there is no other proof by the prosecutor to resolve the doubts about the voluntariness. Accordingly, each protocol of examination by the prosecutor’s office against the Defendant is inadmissible.

(3) The prosecutorial protocol of H (No. 3), the police statement of H (No. 4), the J, I, K, L, M, M, H, N, andO written statements (No. 7, 8, 10 through 14, 31) of H, and P (No. 15), and the defendant's explanatory statement (no. 15) of P, on the grounds that the witness appeared as a witness in this court and recognized the authenticity thereof, all of which are inadmissible.

(4) A report accompanied by acknowledgement (No. 16), each investigation report (No. 17 through 20, 22), and a report on the results of investigation (No. 21). The Defendant consented to the foregoing evidence, and the Defendant’s statement was not proven by the person making the original statement or by the person who made the statement, and thus, the authenticity of its establishment was not proven by the person making the original statement, all of which are inadmissible.

(5) Even if the submission of a seizure record and seized articles No. 1 (No. 5) is a voluntary submission form, as seen earlier, since the defendant was illegally detained without a warrant, the seized articles submitted are inadmissible as evidence of unlawful collection.

C) Probative evidence (1) evidence (1) suspect environmental investigation document (23) and the first trial record (25) case in Seoul District Criminal Court 82 Gohap373 case, the defendant consented to the admissibility of evidence, and the admissibility of evidence is recognized as there is no reason to deny the admissibility of evidence.

(2) Each protocol of trial (No. 26, 27, 30, 32, 35), Seoul High Court 82No2580, each protocol of trial (No. 36 through 38, 40), Q, R, J, and L, as prescribed by Article 315 subparag. 3 of the Criminal Procedure Act, are admissible as a matter of course, as documents prescribed by Article 315 subparag. 3 of the Criminal Procedure Act, and the protocol of examination of witness, which is part of the protocol of trial, is admissible as a matter of course, as documents prescribed by Article 315 subparag. 3 of the Criminal Procedure Act (see Supreme Court Decision 2004Do4428, Apr. 28, 2005). Meanwhile, there is no evidence to deem that there is any circumstance to deny the admissibility of each protocol of trial in the above procedure. Accordingly, each protocol of trial and protocol of examination of witness are admissible as documents prescribed by Article 315 subparag.

C. Determination of facts charged

1) Since the testimony by the witness Q and R stated in each protocol of examination of witness (the third trial date, June 28, 1982) is a content that does not correspond to the facts charged, it is not that the defendant helps the peace North Korea or east. The testimony by the witness J stated in the protocol of examination of witness (the fifth trial date, August 9, 1982) operated the book room in the military service of the defendant, and there is no book installed in the book room during the military service of the defendant, and it cannot be viewed as evidence consistent with the facts charged. Since the witness's statement stated in the protocol of examination of witness (the third trial date, the third trial date, June 20, 1982) cannot be viewed as an act consistent with the facts charged, it cannot be viewed that the witness's statement made in the protocol of examination of witness (the third trial date, the third trial date, and the third trial date, December 20, 1982) constitutes an act against the defendant's will not be seen as an act against the defendant at the Embassy of North Korea.

2) Among the trial records, the Defendant’s statement stated in the sequence 26, 27, 30, 32, 35, 36, 37, and 40 of the trial records is denied the charges, and there is no other content consistent with the facts charged. However, the appellate court’s third trial records (No. 38) states that the Defendant’s last statement to the effect that he acknowledges all the facts charged against the Defendant, and the statement made in the National Security Planning Department. However, the Defendant stated that he has made a statement to the effect that he would deny the charges continuously on the same trial date, and the Defendant made a final statement to the effect that he would like to deny the facts charged. The Defendant made a statement to the same effect as above, and the Defendant’s second statement to the effect that he would be difficult to live. It is difficult to view that the Defendant made a confession to the effect that he made a statement in the first instance trial as evidence, even if he did not appear to have any other evidence that corresponds to the above facts charged.

4. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of crime, it is decided as per Disposition by the decision of not guilty under the latter part of Article 325 of the Criminal Procedure Act.