Whether the admissibility of evidence of the protocol of statement prepared by the prosecutor to unilaterally reverse the testimony favorable to the defendant after the prosecutor summoneds the witness who has finished testimony at a preparatory hearing or during a public trial (negative in principle), and whether the same legal principle applies to the interrogation protocol containing the contents of investigation of perjury against the witness who has finished testimony (affirmative)

It is against the legal structure of the current Criminal Procedure Act aiming at the principle of party, the principle of court-oriented trials, and the principle of direct supervision, and it is against the fundamental right guaranteed by Article 27 of the Constitution aiming at the principle of party, the right to a trial where all evidential materials are investigated and stated in the presence of a judge and the defendant is given an opportunity to attack and defend against them. Thus, such written evidence cannot be admissible unless the defendant agrees that it can be admitted as evidence, and even if the former witness who made the original statement again appeared in the court and made a testimony, and the defendant is given an opportunity to cross-examine the witness at a preparatory hearing or during a public trial, the conclusion that the above written statement itself cannot be admissible is inadmissible, apart from the fact that the testimony itself can be admitted as evidence of guilt, even if the former witness who made the original statement, appeared in the court and made a testimony, and the witness who made the original statement is given an opportunity to cross-examine the witness at a preparatory hearing or during public trial. This also does not change.

Article 27 of the Constitution, Article 312(1), (4), and Article 318 of the Criminal Procedure Act

Supreme Court en banc Decision 99Do1108 Decided June 15, 200 (Gong2000Ha, 1713) Supreme Court Decision 2012Do534 Decided June 14, 2012 (Gong2012Ha, 1258)

Defendant

Defendant

Responsibilities of Attorney

Changwon District Court Decision 2012No256 decided October 25, 2012

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

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court found the Defendant guilty of the instant facts charged on the grounds as indicated in its reasoning based on the adopted evidence, including the admissibility of the protocol of statement by the police officers against Nonindicted 1 and the protocol of interrogation of each prosecutor’s protocol

2. However, we cannot agree with the court below's measures for the following reasons.

A. First, we examine the admissibility of the written statement made by the police against Nonindicted 1.

Article 312(4) of the Criminal Procedure Act provides that "a protocol in which a prosecutor or senior judicial police officer recorded a statement by a person other than a defendant is prepared according to lawful procedures and methods, and the protocol is prepared in accordance with the same manner as written before a prosecutor or senior judicial police officer, and it is proved by a statement at a preparatory hearing or a trial date, a video-recording, or any other objective method, and the defendant or defense counsel could have examined the person making the original statement concerning the contents thereof at a preparatory hearing or a trial date, it may be admitted as evidence."

According to the records, since the defendant did not agree to the police's written statement of non-indicted 1 as evidence, such written statement may be admitted as evidence of conviction in accordance with Article 312 (4) of the Criminal Procedure Act. However, since the court of first instance attended the court of first instance and presented the written statement by the public prosecutor, and the prosecutor testified to the effect that "the defendant confirmed whether the above written statement was recorded and affixed to the prosecutor's questioning," it is unclear whether the above written statement is the purport of recognizing the authenticity of the above written statement, and rather, it is not clear that the part stating "the defendant stolen" was written in the court of first instance, and although the court of first instance attended as a witness, it did not testify with the contents recognizing the authenticity of the above written statement.

Therefore, it is insufficient to recognize the authenticity of the statement in the first instance court and the lower court’s statement alone that the Defendant stolen the instant vehicle from the police protocol (see Supreme Court Decision 96Do1301, Oct. 15, 1996, etc.). Therefore, there is no other evidence to acknowledge the authenticity of the statement in the police protocol with respect to Nonindicted Party 1, the part of the above statement in the police protocol with respect to Nonindicted Party 1 is inadmissible.

B. Next, we examine the admissibility of the copy of each protocol of interrogation of Nonindicted 2 by the prosecution as to Nonindicted 2.

It is against the legal structure of the current Criminal Procedure Act aiming at the principle of party, the principle of public trial-oriented principle, and the principle of directness, and it is against the fundamental right guaranteed by Article 27 of the Constitution, i.e., the right to a trial where all evidence is investigated and stated in the presence of a judge and the defendant is given an opportunity to attack and defend against it. Thus, such written evidence is inadmissible unless the defendant agrees that it can be admitted as evidence. Even if the previous witness who made the original statement again appeared in the court and appeared in the court, and the defendant is given an opportunity to cross-examine the witness's testimony itself, the admissibility of such written evidence is not different, regardless of whether the testimony itself can be admitted as evidence of guilt (see Supreme Court en banc Decision 9Do108, Jun. 15, 200; Supreme Court en banc Decision 9Do1108, Jun. 15, 200; Supreme Court Decision 200Do314, Jun. 14, 2012).

According to the records, the copy of each protocol of interrogation of Nonindicted 2 prepared by the prosecutor as to Nonindicted 2 was summoned by Nonindicted 2 on the date of the first trial and the prosecutor summonedd Nonindicted 2 as the suspect for perjury. This is the fact that: (a) Nonindicted 2’s testimony in Nonindicted 2’s court as to the process of bringing about the instant vehicle to the prosecution and received a statement from Nonindicted 2 to the effect that some of them was not true; (b) the prosecutor submitted a copy of each protocol of interrogation of Nonindicted 2 as to Nonindicted 2 as the evidence of guilt to the lower court; (c) the Defendant did not agree to the admissibility of evidence; and (d) Nonindicted 2 was adopted as a witness but was not summoned upon the prosecutor’s request, and thus, the lower court revoked the decision that the prosecutor adopted Nonindicted 2 as a witness and then adopted a copy of each protocol of interrogation

Examining these facts in light of the legal principles as seen earlier, the copy of each protocol of interrogation of Nonindicted Party 2 by the prosecution is inadmissible in this case.

C. Nevertheless, the court below found the defendant guilty of the facts charged in this case on the ground that both the written statement of the police against Nonindicted 1 and the written protocol of interrogation of each prosecutor's suspect against Nonindicted 2 were admissible as evidence of guilt. The court below erred by misapprehending the legal principles on admissibility of the written statement or the written protocol of interrogation of suspect, which affected the conclusion of the judgment. The ground of appeal

3. Therefore, without examining the remaining grounds of appeal, 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 So-young (Presiding Justice)