[1] Admissibility of evidence of the interrogation protocol prepared by investigation agency other than the prosecutor against the co-defendant in accomplice relation

[2] The case holding that in a case where Co-defendant provided a forged real estate lease contract as security and planned to borrow money from the victim and asked the defendant to receive money by telephone in advance, and the defendant confirmed the amount of deposit money, etc. as a lessor, the act of the defendant satisfies the requirements of co-principal of functional control in the event of uttering of the above investigation document

[1] Article 312(3) of the Criminal Procedure Act applies not only to the case where the interrogation protocol of the accused prepared by investigation agency other than the public prosecutor is admissible as evidence of guilt, but also to the case where the interrogation protocol of the accused or the suspect prepared by investigation agency other than the public prosecutor is adopted as evidence of guilt against the accused. Therefore, even though the interrogation protocol of the accused or the suspect prepared by investigation agency other than the public prosecutor for the co-defendant who has co-defendant relation with the accused is acknowledged as the authenticity of establishment by the court statement of the co-defendant

[2] In a case where the co-defendant provided the forged real estate lease contract as security and planned to borrow money from the victim, and the victim asked the victim to take advantage of the lessor's telephone in preparation for confirming the lessor on the contract, and the defendant knew of the above circumstances and confirmed the amount of the deposit money, etc. as if the victim actually was the lessor, and thereby, he took advantage of the victim's husband's telephone, thereby contributing to the exercise of the above investigation document, the case holding that the judgment of the court below which acquitted the defendant on the ground of lack of evidence is erroneous in the misapprehension of legal principles as to co-principal or in the violation of the rules of evidence

[1] Article 312(3) of the Criminal Procedure Act / [2] Articles 30, 234, and 347 of the Criminal Act; Article 308 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2003Do7185 Decided July 15, 2004 (Gong2004Ha, 1393), Supreme Court Decision 2009Do2865 Decided July 9, 2009 (Gong2009Ha, 1386), Supreme Court Decision 2009Do1889 Decided October 15, 2009 (Gong2009Ha, 1910)

Defendant

Prosecutor

Daejeon District Court Decision 2009No1050 Decided September 9, 2009

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

We examine the grounds of appeal.

1. As to whether the defendant conspired with Co-Defendant 2 in the first instance trial to forge a private document

Article 312(3) of the Criminal Procedure Act applies not only to the case where the interrogation protocol of the accused prepared by investigation agency other than the public prosecutor is admissible as evidence of guilt, but also to the case where the interrogation protocol of the accused or the suspect prepared by investigation agency other than the public prosecutor is adopted as evidence of guilt against the accused. Therefore, the interrogation protocol prepared by investigation agency other than the public prosecutor as to the co-defendant in relation to the accused and the accomplice in relation to the co-defendant in relation to the accused is admissible if the accused denies the contents of the protocol on the trial date (see Supreme Court Decision 2009Do1889 delivered on October 15, 2009).

In light of the above legal principles and the records, it is reasonable for the court below to maintain the police interrogation protocol against Co-defendant 2 of the court of first instance to find the defendant not guilty on the ground that the defendant denies the contents on the trial date and there is no other evidence to acknowledge it. It is reasonable to view that the court below did not err in the violation of the rules of evidence as otherwise alleged in the ground of appeal.

2. As to whether the defendant conspired with Co-Defendant 2 in the first instance trial and used the above investigation document

The court below upheld the judgment of the court of first instance as it stated in its holding that the defendant was not guilty on the ground that there is a lack of evidence to acknowledge the fact that the defendant in collusion with Co-Defendant 2 of the court of first instance exercised a forged real estate lease contract

However, according to the defendant's statement at the police, the police of Co-defendant 2 at the court of first instance, and each statement at the court of court below, Co-defendant 2 at the court of first instance planned to provide forged real estate lease contract as security and borrow money from the victim Non-indicted 1, and asked the defendant to perform the act of lease by telephone in advance in preparation for the confirmation by the telephone to the lessor on the forged real estate lease contract. The defendant knew that Co-defendant 2 of the court of first instance presented the forged real estate lease contract to the non-indicted 1 in a document related to the security and knowingly accepted the loan of money from the non-indicted 1, and actually shared the use of the above investigation document by confirming the amount of deposit money, etc. as if he was the actual lessor from the non-indicted 2, and the above act of the defendant satisfies the requirements for the co-principal of functional control in the exercise of the above investigation document.

Nevertheless, the court below found the defendant not guilty on the ground that there is no evidence to acknowledge that the defendant committed the crime of uttering of a falsified document in collusion with co-defendant 2 of the court of first instance. The court below erred by misapprehending the legal principles on co-principal or exceeding the limit of the principle of free evaluation of evidence in violation of the rules of evidence, which affected the conclusion of the judgment. The purport

3. Scope of reversal

Since there is a reason to reverse the facts charged in the exercise of the above part of the indictment against the defendant, and the Daejeon District Court 2009Da3948 of the Daejeon District Court 2009DaDa3948 of the indictment, the forgery of private documents, the uttering of the above investigation document, and the charge of fraud should be sentenced to a single punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below cannot be reversed in its entirety (see, e.g., Supreme Court Decision 2003Do889, Jun.

4. Conclusion

Therefore, the judgment of the court below is reversed and 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 Kim Ji-hyung (Presiding Justice)