Whether or not the credibility of evidence has been obtained by making the witness who testified favorable to the defendant in the court outside the court and reconcing his/her testimony in the court (negative)

The collection of evidence in order to reverse the testimony in the court by holding the witness who has given testimony favorable to the defendant outside the court cannot be said to be a fair exercise of the right of investigation, and the credibility of the evidence so collected shall be relatively weak, so credibility should be denied.

Article 312(1) of the Criminal Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 1462, Aug. 23, 1983) (Law No. 1983,1462) and 84Do1376, Nov. 27, 1984 (Gong1985,101) (Gong192,2808)

Defendant

Defendant and Prosecutor

Attorney Kim Dong-hwan

Seoul Criminal Court Decision 91No6861 delivered on June 26, 1992

The guilty portion of the judgment of the court below is reversed, and that part of the case is remanded to the Panel Division of the Seoul Criminal Court. The prosecutor's appeal is dismissed.

The grounds of appeal are examined.

As to the Prosecutor’s Grounds of Appeal

Examining the evidence relations selected by the court below in light of the records, it is proper that the court below maintained the judgment of the court of first instance that acquitted the defendant of the charge of taking in breach of trust and embezzlement on the ground that it is not possible to recognize the fact that the defendant received 2 million won from the non-indicted 1 (2-A among the facts charged), that the defendant received 1.2 million won from the non-indicted 2 in return for an illegal solicitation (2-A among the facts charged), and that the defendant received 2 million won from the non-indicted 3 from the non-indicted 3 in return for the illegal solicitation (2-C) and that the defendant received 2 million won from the non-indicted 3 in return for the illegal solicitation (2-C of the facts charged). It is not reasonable to maintain the judgment of the court of first instance that acquitted the charge of taking in breach of trust and embezzlement in the process of fact-finding, such as the theory of the lawsuit, or there is no violation of the rules of evidence.

As to the Defendant’s ground of appeal

According to the reasoning of the judgment of the court below, while maintaining the judgment of the court of first instance that acquitted the defendant as to the above 2-A (1) and (2) and 2-C as to the facts charged against the defendant, the court below reversed the judgment of the court of first instance that acquitted the defendant as to the fact that the defendant received 4 million won from non-indicted 4 on June 13, 1989 and acquired 4 million won for the case expenses (2-B), and found the defendant guilty as to the defendant's interrogation protocol as to the defendant prepared by the prosecutor as evidence, the suspect examination protocol and statement of the prosecutor as to the non-indicted 4 and 5, the fact inquiry report by the high-class community credit cooperatives and the copy of the passbook of the defendant's passbook.

Examining the evidence adopted by the court below in light of the records, in this case where it is evident that the check withdrawn from Nonindicted 6’s old seat, which was the wife of Nonindicted 4, has been deposited in the Defendant’s old seat, it is clear that the court below recognized that the Defendant received the above check in return for illegal solicitation from Nonindicted 4, on the basis of the Defendant’s confession at the prosecutor’s office and the statement consistent with this part of the facts charged at the prosecutor’s office of Nonindicted 4 and Nonindicted 5.

First, according to the records, the investigation of the defendant into the defendant at the prosecutor's office was conducted by examining the source and details of the money deposited in the passbook (108 pages) issued by the defendant at the office of public prosecutor, who is a customer of the defendant, at the office of prosecutor's office. However, the defendant has not received money from the prosecutor's office as to the whole of the facts charged of this case since the first court's consistent judgment, and there is no fact that the money received from the prosecutor's office from the non-indicted 1 as to the non-indicted 2-A-2-B-2, the defendant did not receive money from the non-indicted 4 as to the non-indicted 2-C-2-C-2, and the defendant did not receive money from the non-indicted 3 to the non-indicted 2's prosecutor's office, and it did not change the defendant's testimony from the prosecutor's office of this case to the non-indicted 2-4's confession of the above facts charged of this case. In light of the whole facts charged of this case, the defendant's confession and the non-indicted 2-indicted.

Next, according to the health team, the witness’s statement at the prosecutor’s office of Nonindicted 4 denied the fact that he was given money to the defendant first at the prosecutor’s office, but thereafter, the witness denied the fact that he was given money to the defendant in response to the above solicitation since the first trial, and the prosecutor’s office denied the fact that he had consistently made money to the defendant, and stated that the above statement at the prosecutor’s office was made by the defendant upon the request of the defendant for questioning the fact that he was given money to the defendant. As seen above, the defendant also presented a statement to the same effect since the first trial and presented a letter that can support the statement. In light of the circumstances leading up to Nonindicted 4’s statement and the process and method of the investigation of this case, it is difficult to recognize its credibility.

Finally, according to the health stand, the statement of the witness at the prosecution of Nonindicted 5, Nonindicted 4, Nonindicted 5, a witness working for Nonindicted 5 with the Defendant, at the fifth trial date ( March 13, 1991) of the first instance court, he stated that he exchanged four million won check, which he received from Nonindicted 4, his father, for the payment of the price of the apartment association on the day of the instant case, with four million won in cash of the Defendant at the court of first instance on July 23, 191, which was sentenced not guilty of the whole facts charged against the Defendant including the above facts charged at the court of first instance on July 23, 191, 191, the prosecutor of the instant investigation at the court of first instance, issued the above evidence to Nonindicted 5, who gave favorable testimony to the Defendant at the court of first instance, and issued it with the warrant of detention for the purpose of his testimony at the court of first instance, and then, he cannot be found to have been found to have been trusted by the Defendant at the court of first instance on that date.

Therefore, the court below's determination of facts against the rules of evidence that the court below adopted the above evidence without credibility and found the defendant guilty of the charges, and there is an error of law by misconception of facts against the rules of evidence, and there is reason to point this out

Therefore, the conviction portion of the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. The prosecutor's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)