Probative value of the protocol in which statements are written by persons other than suspects

A protocol in which statements are written by a person who is not a suspect shall not be admitted as evidence unless it is admitted to be genuine by the statement of the person who has made the original statement in the courtroom, nor shall the defendant admit the formation thereof and agree that it may be admitted as evidence in the courtroom.

Articles 312 and 318 of the Criminal Procedure Act

Supreme Court Decision 67Do231 Decided April 18, 1967

Defendant 1 and one other

Defendant 1 and Prosecutor

Attorney Jeong Jong-chul

Seoul Criminal Court Decision 81No171 delivered on July 28, 1982

The conviction part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the Panel Division of the Seoul Criminal Court.

The Prosecutor’s appeal against the Defendants is dismissed.

The grounds of appeal are examined.

(1) As to Defendant 1’s grounds of appeal

The court below found Defendant 1 guilty of the facts charged that Defendant 1 prepared a letter of resignation from the representative director, a corporation representative director of the hambad ham, etc. in the name of Kim Jae-hun and completed the registration of resignation in the register of the corporation, and the joint defendant of the court below requested the office of a judicial assistant, thereby forging and exercising one copy of the letter of resignation from the representative director in the name of the above Kim Jae-hun, and exercised the fact of falsity

However, examining the evidence admitted as evidence of conviction by the court below in comparison with the records, the contents of defendant 1's statement at the court of first instance and the prosecutor's interrogation protocol as to the defendant's co-defendants at the court of the court below are as follows: defendant 1 merely instructed the co-defendants at the court of the court below to dismiss the representative director's office; unlike such instruction, co-defendants at the court of the court below denied the facts charged as the fact that he prepared a letter of resignation; since the certified copy of the court of the court below's co-defendants at the court of the court below which is bound with the records does not include any evidence which can be proved as to the contents of defendant 1's instructions to the co-defendants at the court of the court below, each of the prosecutor's and judicial police officer's statement as to the preparation of Kim Jong-hun is the purport that "the resignation of the person's name is written by the court of the court below's co-defendants at the court of the court below and there is no consent of the court of the court below's prosecutor's evidence.

Therefore, the judgment of the court below is just because the above evidence is not admissible or reliable, and it is obvious that this affected the judgment.

(2) As to the Prosecutor’s grounds of appeal:

In light of the records, the court below's decision that acquitted the Defendants of the part on the invalidation of indication in the line of duty on the ground that the evidence of the theory presented in compliance with the facts charged cannot be trusted for the same reason as the reasoning of the judgment, and there is no evidence to find otherwise that the Defendants knew of the seizure in the sale of the seized object of this case, and there is no violation of the rules of evidence or incomplete deliberation.

The issue is groundless.

Therefore, among the judgment below, the guilty portion against Defendant 1 is reversed and remanded to the court below, and the prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young