In a case where the defendant was prosecuted for violating the Employment Security Act by introducing and arranging Eul who became aware of through Gap to a sexual traffic business establishment, the case denying the admissibility of the part of Eul's statement among the prosecutor's protocol of statement against Gap and the prosecutor's protocol of interrogation of the defendant against Eul among the evidence submitted by the prosecutor, on the ground that the prosecutor's application was adopted and remanded as a witness, and the location detection commission, etc. was not made even though it was impossible to deliver several times due to the lack of closed door, etc.

In a case where the defendant was prosecuted for violating the Employment Security Act by introducing and arranging Eul, which he/she became aware of through Gap, to a sexual traffic business establishment, the case affirming the court below's rejection of the defendant's testimony and the court below's rejection of admissibility of evidence among the prosecutor's protocol and the prosecutor's protocol on the ground that Gap and Eul were unable to make a statement due to death, disease, foreign residence, unknown whereabouts, or any other similar cause since Gap and Eul were not proved to have made an inevitable efforts even though they were able to attend the court even though they were aware of the fact that Gap and Eul were unable to serve several times due to the absence of closed door or the addressee's unknownness, and thus, Gap and Eul were unable to make a statement even if Gap and Eul attend the court, it cannot be seen as a specific and external circumstance where Gap and Eul were expected to sufficiently guarantee the credibility of the contents of the statement in the investigative agency's statement.

Article 156 of the Criminal Act; Article 46(1)2 of the former Employment Security Act (Amended by Act No. 12631, May 20, 2014); Articles 312, 313, 314, and 325 of the Criminal Procedure Act

Defendant

Prosecutor

The highest decoration et al.

Attorney Full Il-il

Cheongju District Court Decision 2013Ma173 decided May 22, 2014

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of legal principles

Nonindicted 1 and 2 constitute cases where it is impossible to make a statement due to a cause similar to unknown whereabouts of Article 314 of the Criminal Procedure Act, and Nonindicted 1 introduced Nonindicted 2 to the Defendant, and Nonindicted 2, even if both of the two persons as the victim of the instant facts charged, are present at the court, it is clear that the statement was made in the investigative agency with the same contents as the statement. Thus, it is proved that the statement was made in a particularly reliable state, and thus, it is admissible in accordance with Article 314 of the Criminal Procedure Act. Therefore, the lower court erred by misapprehending the legal doctrine on Article 314 of the Criminal Procedure Act, which determined that the part of Nonindicted 1’s written statement by the police and the protocol

B. Grounds for mistake of fact

According to the evidence submitted by the prosecutor, although all of the facts charged in this case can be found guilty, the judgment of the court below which acquitted the Defendant of the facts charged in this case is erroneous.

2. Determination

A. Summary of the facts charged in this case

1) Violation of the Employment Security Act

On August 11, 2012, the Defendant introduced Nonindicted 2 to Nonindicted 3, an actual operator of the said establishment, Nonindicted 3, as a female employee who engages in sexual traffic, even though he knows that there is a place where sexual traffic is conducted at the “○○○○○○” conference located in the Young-dong, Young-gu, Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-do.

Accordingly, the defendant introduced and arranged the job for the purpose of having the job employed in the job where the act of selling sex was conducted.

(ii)an accusation;

Around February 28, 2013, the Defendant filed a false report with Nonindicted Party 2 on Nonindicted Party 2 with the intent to have Nonindicted Party 2 punished. The content of the report is that “ around June 2, 2012, Nonindicted Party 2, at the time of the reporting person’s residence in the Si/Gu/Eup/Myeon/Dong-dong, Chungcheongnam-dong, Chungcheongnam-dong, Chungcheongnam-gu, Chungcheongnam-do.” However, on June 2, 2012, the Defendant issued a false report to the said Nonindicted Party 2, who was playing in his/her residence at around 17:0,00, on the grounds that: (a) Nonindicted Party 2’s delivery was not a theft of Nonindicted Party 2.

Nevertheless, on the same day, the Defendant filed the above report with Nonindicted 4 at the above regional criminal office of the Dong-dong Police Station and brought Nonindicted 2 to the said office.

B. The judgment of the court below

The lower court rejected the admissibility of Nonindicted 1’s written statement of Nonindicted 1 and the protocol of examination of the Defendant’s suspect against the Defendant, and subsequently acquitted the Defendant of the instant charges on the grounds that the other evidence submitted by the prosecutor alone was insufficient to acknowledge each of the instant charges, and that there was no other evidence to acknowledge each of the instant charges.

C. Judgment of the court below

1) As to the assertion of misunderstanding legal principles

A) Under Article 314 of the Criminal Procedure Act, in order to use the protocol under Article 312 of the same Act or the statement, documents, etc. under Article 313 of the same Act as evidence, a person who needs to make a statement on the trial date shall be a person unable to make a statement by attending the public trial due to death, disease, foreign residence, unknown whereabouts, or any other similar cause, and shall meet two requirements that the preparation of such statement or documents shall be made under particularly reliable circumstances. Here, “when a person who needs a statement on the trial date is unable to make a statement due to his/her unknown whereabouts or any other similar cause” refers to cases where the person is unable to make a statement due to his/her unknown address and requests for the detection of his/her whereabouts but it is impossible to confirm the person’s whereabouts. It is insufficient to deem that the requirement of witness under Article 314 of the Criminal Procedure Act as exceptions to directism and the hearsay rule is met or it is impossible for the public prosecutor to make a statement due to other reasons corresponding to the Supreme Court Decision 2010Do160.

In addition, Article 314 of the Criminal Procedure Act, which provides an exception to the hearsay rule, provides that the statement made by the person making the original statement, even though it was made in accordance with due process and does not constitute a doubtful time, it is impossible for the person making the original statement to make a statement at the preparatory hearing or on the trial date due to death, disease, foreign residence, unknown whereabouts, or any other inevitable reason corresponding thereto, and strictly limits the scope of admissibility to the minimum extent necessary by stating that it can be admitted as evidence only when it was proven in a particularly reliable state. Thus, if a prosecutor submits a hearsay statement as evidence, the person making the original statement must prove the circumstances which were made under particularly reliable circumstances, and if it is deemed to meet the requirements after strictly examining it. The degree of proof required in this case is deemed to be the object of examination of evidence. In light of the specific situation and circumstances of the statement, the degree of admissibility of the statement is more than the degree of securing the credibility of the statement made through cross-examination, etc. in court, and it can sufficiently be evaluated as an exception to the principle of direct examination and hearsay rule (see, etc.).

B) On the admissibility of the written statement by Nonindicted Party 1, the record reveals that the court below adopted Nonindicted Party 1 as a witness at the request of the prosecutor, and summoned Nonindicted Party 1 as a witness at the court below, but it was not possible to deliver it over several times due to the absence of closure. In the trial, Nonindicted Party 1 applied to Nonindicted Party 1 as a witness, but did not investigate the location of Nonindicted Party 1, including the discovery of location. Furthermore, according to the investigation report submitted by the prosecutor, Nonindicted Party 1 was aware that he was adopted as a witness and summoned, he cannot make an appearance during the period of time during which he was called, and all statements made by the police in relation to this case are made in full. Thus, it cannot be deemed that Nonindicted Party 1, a person making the original statement, despite the above reasons alone, cannot be deemed as having proved that Nonindicted Party 1’s appearance was impossible due to death, disease, residence, unknown whereabouts, and any other similar cause (see, e.g., Supreme Court Decision 290Do1969, Apr. 19, 2905).

Furthermore, the defendant consistently denies the facts charged in this case since the investigation agency and the court, and ② the defendant seems to have consistently denied the statements related to the facts charged in this case by the investigation agency, but the investigation agency did not have an opportunity to reflect the contents of the non-indicted 1's statement. ③ With respect to non-indicted 1's accusation among the facts charged in this case, it seems that the non-indicted 1 stated the contents in the investigation agency from the non-indicted 2 (as to the non-indicted 2's evidence record 42). As to the violation of the Employment Security Act, it seems that the non-indicted 1 introduced the defendant to the non-indicted 2. As seen above, in light of the facts and the reasons for the non-indicted 1's refusal to attend the court, even if the non-indicted 1 appears in the court as alleged by the prosecutor, the non-indicted 1 is expected to have made a statement like the statement in the investigation agency, and there is no room to intervene falsely and there is no need to acknowledge credibility in the statement through the cross-examination.

C) According to the health records and records as to the admissibility of Nonindicted 2’s statement in the protocol of interrogation of the Defendant by the prosecution, the court below adopted Nonindicted 2 as a witness at the prosecutor’s request and summoned Nonindicted 2 at the court below as witness, but it was impossible to send it several times due to the addressee’s unknown whereabouts. Nonindicted 2 submitted a written application to the court below on February 4, 2014, immediately after the witness’s request was made. On February 19, 2014, the court below submitted the written application for non-indicted 2’s failure to attend the court, and expressed his/her intention to attend the court as witness by telephone call from the court below on March 12, 2014. In the trial of the party, it is difficult to deem that the prosecutor did not make any foreign investigation into the location of Nonindicted 2, including detection of materials, at the same address as in the court below, but it was difficult to deem that Nonindicted 2’s cell phone numbers were available for other reasons, such as personal contact or questioning by the prosecutor.

① In addition, the Defendant consistently denied the instant facts charged from the investigative agency to the date of this trial; ② Nonindicted Party 2’s questioning was conducted in the prosecutor’s office with respect to Nonindicted Party 2’s non-indicted 2’s testimony; however, Nonindicted Party 2’s testimony changed from the prosecutor’s office to the point that Nonindicted Party 2 would not have been able to ask the Defendant to leave his front seat and thus, Nonindicted Party 2 could not get out of his own seat; on the other hand, Nonindicted Party 2’s testimony was known that it would bring Nonindicted Party 2 to the Defendant for fraud; and Nonindicted Party 2 did not appear to have been present in the prosecutor’s office in compliance with the aforementioned facts charged, such as whether Nonindicted Party 2 had been present with the Defendant’s consent; ③ Nonindicted Party 2 was unable to demand the Defendant to return funds borrowed from the Defendant; and ④ Nonindicted Party 2 did not appear to have been present in the prosecutor’s office to the effect that it would have changed the credibility of the Defendant’s testimony during the process of this case’s testimony.

D) Therefore, the court below’s measure that did not recognize the admissibility of the part of Nonindicted Party 2’s statement among the prosecutor’s interrogation protocol against Nonindicted Party 1 and the defendant’s interrogation protocol against the defendant is acceptable, and there is no error in the misapprehension of legal principles on Article 314 of the Criminal Procedure Act

2) As to the assertion of mistake of facts

In light of the records, the court below's determination of not guilty of each of the facts charged of this case is acceptable on the ground that the evidence adopted and investigated by the court below is insufficient to recognize the guilty of each of the facts charged of this case, and there is no error of law by mistake of facts as alleged in the grounds of appeal.

Therefore, the prosecutor's allegation of this part of the appeal is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Sung (Presiding Judge)