[1] The intent of denying the admissibility of evidence of a non-Voluntary statement and the burden of proving the voluntariness of the statement (=public prosecutor)

[2] The method of determining whether the defendant's statement was voluntary or not in a case where the defendant asserts that the statement recorded in the suspect interrogation protocol and the statement made on the trial are false confession

[3] In a case where the defendant made a confession without voluntariness at an investigative agency, and subsequently made a confession of the same contents in the court, whether the confession in the court is voluntary (negative)

[1] Articles 308 and 317 of the Criminal Procedure Act / [2] Articles 308, 309, and 317 of the Criminal Procedure Act / [3] Article 309 of the Criminal Procedure Act

[1] Supreme Court Decision 2004Do517 Decided January 26, 2006 (Gong2006Sang, 359), Supreme Court Decision 2004Do7900 Decided November 23, 2006 (Gong2007Sang, 78) / [3] Supreme Court Decision 2009Do1603 Decided October 27, 201 (Gong201Ha, 2470) / [2] Supreme Court Decision 2003Do705 Decided May 30, 2003 (Gong203Ha, 1494), Supreme Court Decision 2010Do14720 (Gong201Sang, 686) Decided February 24, 2011 / [3] Supreme Court Decision 2008Do4684 decided April 26, 2004

Defendant 1 and four others

Appellant 1 and 4 others

Prosecutor

Attorney Kim Jong-chul

Gwangju High Court Decision 2009Jono1 Decided February 4, 2010

The appeal is dismissed.

1. As to the grounds of appeal on the confession of the Defendants and the admissibility of the statements by witnesses

The purpose of denying the admissibility of evidence of a statement without voluntariness is to prevent not only the statement itself, which was made under a dangerous condition that causes or is likely to cause a false statement, but also the abuse of illegal and unjust pressure that infringes on fundamental human rights of a person who has made a statement by leaving the truth, in advance. Thus, when there is a dispute over voluntariness, a prosecutor must prove a reasonable and detailed fact that is likely to suspect voluntartariness, not the defendant, but the prosecutor must prove that the question about voluntariness is eliminated, and when the prosecutor fails to prove that the question about voluntariness is eliminated, the evidence of the statement is denied (see Supreme Court Decision 2004Do517, Jan. 26, 2006, etc.).

Meanwhile, in a case where the defendant argues that the defendant's statement and the testimony of the defendant on the trial date entered in the suspect interrogation protocol are false confession, the court should determine whether the above statement was made at will by free evaluation of evidence in consideration of various circumstances, such as the defendant's educational background, career, occupation, social status, intelligence degree, contents of the suspect interrogation protocol, and the form of the protocol (see Supreme Court Decision 2003Do705 delivered on May 30, 2003, etc.).

In addition, if the defendant made a confession without voluntariness at an investigative agency due to harsh acts, etc., and thereafter made a confession with the same contents in the court, then the confession in the court shall also be deemed to be an unvoluntary confession (see, e.g., Supreme Court Decisions 2002Do4469, Jul. 8, 2004; 2009Do1603, Oct. 27, 201).

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and found the defendants not guilty on the ground that the defendants were found guilty on the ground that they were found to have committed harsh acts by investigators while illegally detained for a long time, and made a confession without voluntariness, and then the prosecutor's investigation and trial at the court's trial stage, each protocol of suspect examination prepared by the prosecutor about the defendants cannot be used as evidence because voluntartariness exists, and the protocol of statement (including part of the statement) prepared by the investigators about the witness who correspond to the facts charged cannot be used as evidence because they did not have any voluntariness or it cannot be used as evidence for conviction because it is not reliable. In light of the above legal principles and records, the judgment of the court below is just and acceptable, and there is no violation of the bounds of the principle of free evaluation of evidence in violation of the logical and empirical rules, or misunderstanding the legal principles on the voluntariness and admissibility of evidence.

2. As to the ground of appeal on the violation of the Fisheries Act and violation of public law due to escape

The court below found the Defendants not guilty on the ground that the confessions by the Defendants, who escaped from North Korea upon fishing at the sea of North Korea, were false confessions in light of the circumstances and contents of the confessions, and there is no other evidence to find the Defendants guilty.

In light of the records, we affirm the judgment of the court below as just and there is no violation of law by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. As to the ground of appeal on the violation of public law by praises and rubber

The court below found the defendant not guilty on the ground that the evidence, which corresponds to this part of the facts charged, cannot be admitted as evidence of guilt because it is not admissible, or its content cannot be used as evidence of guilt because it is not reliable. In addition, in light of the circumstances and contents of the defendants' talks about North Korea, the defendants merely talk about the issues that the defendants experienced or learned in North Korea, and it cannot be viewed that the defendants talked about North Korea for the purpose of praiseing or promoting the activities of North Korea.

In light of the records, the judgment of the court below is just and acceptable, and there is no error of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or of misapprehending the legal principles as to praises and innocence in anti-public law.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)