[1] The case holding that the witness statement does not constitute illegally collected evidence in case where the military prosecutor charged the defendant with acceptance of bribe, and then made a witness statement against the bribe payer Gap in a foreign country without going through the criminal justice cooperation procedure

[2] The requirements for the admissibility of a statement which is hearsay evidence under Article 367 of the Military Court Act

[3] The case holding that the statement statement cannot be used as evidence of conviction on the ground that it is not proven that Gap's statement was made in an exceptional situation, in case where the military prosecutor charged the defendant with acceptance of bribe and made a witness statement against the bribe payer Gap in a foreign country without going through the criminal justice cooperation procedure

[4] The case holding that the above accusation cannot be used as evidence of guilt in a case where the defendant's defense counsel's opinion on the statement of accusation prepared by the bribe payer Gap among the evidence submitted on the trial date, and the defendant's defense counsel consented to the investigation report of the prosecutor's assistant assistant who contained the same accusation in the attached document, and the examination of evidence was conducted upon consent to the evidence, and the court below's consent to the investigation report is also effective in the attached document

[5] In a case where an officer belonging to the Marine Corps, who is in charge of facility construction of a military unit, was indicted for violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on the ground that he received a bribe from a constructor Gap in relation to his duties, the case holding that the judgment below which found the defendant guilty on the sole basis of evidence that has

[1] The case holding that in case where a witness investigation conducted by a prosecutor against the bribe payer Gap at a hotel in the Republic of Guatemala without undergoing the criminal justice cooperation procedure and making a witness statement against the bribe payer Gap, insofar as it constitutes an investigation for evidence collection and the place of such investigation falls under the territory of the Republic of Guatemala, not the Republic of Korea, since it is obvious in the record that the other party to the investigation is a citizen of the Republic of Korea and there was no possibility of involvement in the method or procedure of the investigation, as long as it is obvious that the methods or procedure of the investigation and there was no possibility of force or force as well as any non-voluntary factors, this is nothing more than one form of communication between the government agencies of the friendship country and their citizens, which are naturally acceptable between the other party's travel and residence, and therefore, it cannot be seen as an infringement of territorial sovereignty, and further, this is an international legal issue between Korea and the Republic of Guatemala, and thus, it cannot be viewed as unlawful evidence collection under the domestic criminal procedure law.

[2] In order for the hearsay evidence to be admitted as admissible evidence pursuant to Article 367 of the Military Court Act, the statement should be made under particularly reliable circumstances. This refers to cases where there is little room for false entry in the contents of the statement or the preparation of the protocol or documents, and there is a specific and external circumstance to guarantee the credibility or voluntariness of the statement.

[3] The case holding that in case where Gap's statement was not admissible since it is difficult to view that Gap's statement was made in a particularly reliable state because it was hard to view that Gap's statement was made in a particularly reliable state and it was not admissible as evidence, in light of all circumstances, such as the fact that Gap responded to an investigation in a free atmosphere and was not directly signed and sealed in the protocol, and the military prosecutor's direct investigation was conducted in a local place without taking a method of investigation outside the procedure of investigation into evidence investigation by the military court, and it can be viewed that it was out of the regular form of investigation without taking a method of investigation, in light of all the circumstances such as the fact that Gap's statement was made in a situation where the statement was made in a particularly reliable state, and it is not admissible as evidence.

[4] The case holding that in a case where the defendant's defense counsel stated his/her opinion on the bribe payer Gap's written accusation from among the evidence submitted by the military prosecutor on the trial date, and the defendant's or his/her defense counsel stated his/her opinion on the admissibility of evidence, and consented to the investigation report of the prosecution assistant's written accusation containing the same accusation as an attached document and thus the court below deemed that the consent to the investigation report naturally extends to the attached accusation, and thus, the evidence was admitted as evidence for conviction, the court held that in a case where the investigative agency summarys and explains the meaning, character, relevance to the suspected facts, etc. in the form of an investigation report and appends the relevant materials to the investigation report, the contents of the investigation report are merely awareness, determination, or mere summary of the materials obtained by the investigative agency through the attached materials, and thus, the defendant or his/her defense counsel cannot have probative value as to the facts charged independently from the original materials, and in light of all circumstances such as denying the facts charged, but did not dispute the admissibility of evidence of the investigation report, it cannot be admitted as evidence.

[5] In a case where the defendant, as an officer belonging to the Marine Corps, was indicted for violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on the ground that he received a bribe from the constructor Gap in relation to his duties, the case holding that the court below erred in the misapprehension of legal principles as to the admissibility of hearsay evidence, examination procedure of evidentiary documents, and degree of proof of guilt in a military trial on the ground that the witness Gap's statement and the defendant's accusation attached to the investigation report on the preparation of the assistant assistant for the prosecution cannot be used as evidence for conviction, and the remaining evidence submitted by the military prosecutor alone are insufficient to be found guilty, although the evidence is not admissible or has weak probative value.

[1] Articles 359-2 and 365 of the Military Court Act / [2] Articles 365 and 367 of the Military Court Act / [3] Articles 365 and 367 of the Military Court Act / [4] Articles 337, 343, 347, and 371 of the Military Court Act / [5] Articles 359, 360, 365, and 367 of the Military Court Act; Article 129 (1) of the Criminal Act; Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes

[1] Supreme Court Decision 2004Do3619 decided May 25, 2006 (Gong2006Ha, 1202) Supreme Court Decision 2006Do9294 Decided July 26, 2007

Defendant

Defendant

Attorney Lee In-bok

High Court for Armed Forces Decision 2010No196 Decided March 16, 201

The judgment below is reversed, and the case is remanded to the High Military Court.

The grounds of appeal are examined.

1. As to the admissibility of the written statement prepared by the military prosecutor against Nonindicted 1

According to the records and the reasoning of the judgment below, the court below rejected the defendant and the defense counsel's assertion that the prosecutor directly met Nonindicted 1, who remains in the Republic of Guatemala without going through the criminal justice cooperation procedure, and who violated the territorial sovereignty of a foreign country that should be guaranteed in accordance with international law, and violated the procedures for international criminal justice cooperation and thus, the admissibility of evidence should be denied. Furthermore, since the above protocol of statement constitutes a case where the person making the original statement is unable to make a statement due to his residence abroad, its admissibility is recognized in accordance with Article 367 of the Military Court Act, and thus, it is admitted as evidence of guilt.

First, as to whether the above protocol of statement constitutes illegally collected evidence, although the prosecutor's investigation against Nonindicted Party 1 constitutes an investigation for evidence collection and its place belongs to the territory of the Republic of Guatemala, it is clear that there was no room for involvement in the method or procedure of investigation as well as force or force as well as any non-voluntary factors by the prosecutor's own response to the investigation by a citizen of the Republic of Korea and the other party's response to the investigation, this is nothing more than one form of free communication between the state agencies of the friendly country naturally accepted between the two parties' travel and residence of the other party. Thus, any territorial sovereignty infringement problem may not arise. Furthermore, this is an international legal issue between Korea and the Republic of Guatemala, and the defendant is not in any relationship between Korea and the Republic of Guatemala, and thus, it cannot be deemed that the rule of exclusion of illegally collected evidence is applied in the domestic criminal procedure against the defendant as above.

However, in order for the above hearsay evidence to be admitted as evidence pursuant to Article 367 of the Military Court Act, the statement should be made under particularly reliable circumstances. This refers to cases where there is little room for false entry in the contents of the statement or the preparation of the protocol or documents, and there is specific and external circumstances to guarantee the credibility or decentralization of the contents of the statement (see, e.g., Supreme Court Decision 2004Do3619, May 25, 2006). The circumstances cited by the court below are insufficient to acknowledge the above circumstances solely on the ground that Nonindicted 1 responded to an investigation in the form of voluntary investigation in a free atmosphere and directly signed and sealed the statement. Rather, even if the investigation of the witness by Nonindicted 1 did not involve force, it is difficult to see that the prosecutor unilaterally made the above statement to the effect that there was no possibility that the defendant's testimony was made without any need to escape from the military court after the prosecution of this case, and that there was no possibility that it would be no possibility that the defendant's testimony would be subject to criminal investigation.

Ultimately, the written statement of Nonindicted Party 1 prepared by the military prosecutor is inadmissible as evidence, and it cannot be used as evidence of guilt.

2. As to the admissibility of Nonindicted Party 1’s written information attached to the investigation report by the Prosecutor General of the Daejeon District Prosecutors’ Office

According to the records, the prosecutor applied for the investigation report of this case, which was prepared by Non-Indicted 1 on the first trial date of the first instance court (Evidence No. 11, hereinafter "the Prosecutor's Office") and the investigation report (Evidence No. 24; hereinafter "Investigation Report of this case"), prepared by the Prosecutor's Office assistant of the Daejeon District Public Prosecutor's Office (Evidence No. 24; hereinafter "the Prosecutor's Office") on the first trial date, and the defendant's counsel expressed that he did not agree to the admissibility of the accusation as an attached document, but the defendant's counsel consented to the investigation report of this case containing the same accusation as an attached document. The first instance court, after completing the investigation report of this case on the first trial date, did not examine the facts that the prosecutor did not withdraw the accusation report of this case on the fourth trial date, and did not examine the evidence. The first instance court and the lower court did not disclose the evidence opinion on the investigation report of this case separately from the investigation report of this case and the documents attached thereto, and rejected the defendant's and defense counsel's opinion on the defendant and defense counsel's allegation as evidence.

As above, if the meaning, character, and relevance of the above data collected by the investigative agency in the course of the investigation is summarized and explained in the form of a report on investigation, and the relevant data is attached to the investigation report, the content stated in the report on the investigation is merely recognition, judgment, and prosecution obtained through the attached data or merely a simple summary of the data, and it is not possible to have probative value as to the facts charged independently from the original data. In this case, the defendant or his defense counsel did not dispute the admissibility of the report on the investigation of this case with the above purport of understanding the probative value of the investigation report of this case as above, notwithstanding the denial

Therefore, in a case where the prosecutor applied for the investigation report of this case as evidence, and Nonindicted 1’s written accusation attached thereto presented the opportunity to explain the new written accusation to Nonindicted 1, and the contents of the accusation are consistent with the facts charged, if the prosecutor wants to prove the facts charged, the above written accusation should have been applied as independent evidence with separate marks attached to the evidence list, since it does not have probative value or value as a single document, or it has independent probative value as an independent evidence, instead of being incorporated as part of the investigation report of this case or combined both in its contents, and it should have been applied as independent evidence by attaching separate marks to the evidence list. In such a case, the military court should have withdrawn the above written accusation as it overlaps with the evidence list 11 No. 11, or the defense counsel already expressed its intention not to consent to the same written accusation. Thus, even if the defendant and the defense counsel expressed their intention to consent to the investigation report of this case, the court should have separately presented the attached documents to confirm whether the consent to the investigation report of this case was given.

Ultimately, Nonindicted 1’s accusation attached to the instant investigation report cannot be deemed as having undergone due process of examination of evidence, determination of evidence, or examination of evidence under the Military Court Act, or there is no evidence of probative value supporting the facts charged, and thus, it cannot be deemed as evidence of guilt.

3. Whether the facts charged are proven based on remaining evidence;

As above, if the written statement of Nonindicted 1 prepared by the military prosecutor and the written accusation attached to the investigation report of this case cannot be used as evidence of guilt among the evidence submitted by the military prosecutor, the remaining court of the first instance can lawfully adopt and investigate the facts and find the following facts based on the evidence cited by the court below. It is difficult to view that there is evidence as to the facts charged to the extent that such indirect facts can be ruled out without the statement of the person who provided money or goods in the crime

In other words, even if Nonindicted Party 1’s statement or accusation was excluded, there was money transaction between the Defendant and Nonindicted Party 1 on the date and time indicated in the facts charged, according to the remaining evidence. At the time, the Defendant was a public prosecutor’s book of the Marine Corps ○○○○○, and at the time, at the time of monetary transaction on October 8, 2004, the Defendant was a person responsible for the field supervision of the construction of the above ancillary △△△△△△△△△△△ facilities that was contracted by Nonindicted Company 1. Even if there was no special revenue source other than the salary, there is a question in the process of property formation, such as acquiring an officetel and apartment in his name in 202 and 207, and even if there was no special revenue source other than the salary, there was a suspicion that there was money transaction in doubt with the constructor responsible for the construction of military facilities through the borrowed account at the time of being employed as the public prosecutor’

However, the above evidence alone does not have any statement directly supporting the fact that the money and valuables transaction of this case is related to the defendant's duties. ① around September 2003, Nonindicted Party 1 provided the difference of KRW 10 million as a bribe by receiving the return of KRW 30 million from the defendant. This method is very exceptional and influence with the method of acceptance of bribe, rather than a simple attempt made by the military prosecutor to conceal and conceal the bribe of KRW 10 million, as argued by the defendant, it is more likely that some of the money and valuables transactions will continue to be part of the money transaction as alleged by the defendant. The above money and valuables are prior to the conclusion of the Marine Corps ○○ △△△△△△△△△△△△△△△△△△, and it is difficult to find that there is no possibility that the above money and valuables are given to Nonindicted Party 1, 200,000 won prior to the conclusion of the contract with the defendant for acceptance of the bribe of this case, and it appears that there is no possibility that the above money and valuables were provided by the defendant 1000, as well.

In addition, as pointed out in the judgment of the first instance and the judgment of the court below, the defendant's defense for the facts charged of this case is not consistent or persuasive, and above all, there is no explanation to understand the source of the loan to the non-indicted 1, which serves as the basis of the argument. However, since the prosecutor bears the burden of proof for the facts charged in the criminal trial, it cannot be said that there is a proof of the facts charged because it is considered unreasonable that

4. Conclusion

Ultimately, the court below dismissed the defendant's appeal on the ground that the court of first instance which found the defendant guilty of all the facts charged of this case on the ground that there is insufficient evidence to find the guilty guilty of the facts charged of this case without admissibility or weak probative value. In this regard, the court below erred by misapprehending the legal principles on the admissibility of hearsay evidence, the examination procedure of evidence, and the degree of proof of guilt in the military trial, which affected the conclusion of the judgment

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 Ahn Dai-hee (Presiding Justice)