In case a larceny and stolen offender are prosecuted together, the examination protocol of co-defendant in the preparation of the prosecutor is required to have admissibility of evidence.

As the thief and the thief, who are co-defendants, are in the position of witness for the criminal facts different from those of co-defendants, the suspect interrogation protocol against co-defendants who do not consent to use as evidence cannot be admitted as evidence to acknowledge the criminal facts unless the authenticity of establishment is recognized by the testimony of co-defendants.

Article 312(2) of the Criminal Procedure Act

Supreme Court Decision 82Do898 delivered on June 22, 1982 (Gong1982, 724) Supreme Court Decision 82Do1000 delivered on September 14, 1982 (Gong1982, 919)

Defendant 1 and one other

Defendant 1 and Prosecutor (Defendant 2)

Seoul Central District Court Decision 2005No2255 Decided September 23, 2005

The appeal is dismissed. As to Defendant 1, 90 days out of the number of detention days after the appeal shall be included in the original sentence.

1. As to Defendant 1’s appeal

Examining the evidence adopted by the court below in light of the records, it is proper that the court below found Defendant 1 guilty of all the crimes of acquiring stolen goods of this case including the crimes Nos. 2 through 13 of the attached Table 2 of the Crime List 1 in the judgment of the court below, and there is no violation of law of mistake of facts due to violation of the rules of evidence, and there is no violation of law of misconception of facts against the rules of evidence against Defendant 1 in this case where imprisonment with labor for less than 10 years is sentenced against Defendant 1, the reason that the sentencing of the court

2. As to the prosecutor's appeal

As the thief and the thief, who are co-defendants, are in the position of witness for the criminal facts different from those of co-defendants, the suspect examination protocol against co-defendants who do not consent to the defendant as evidence cannot be admitted as evidence to acknowledge the criminal facts of the defendant unless the authenticity of the establishment is recognized by the testimony of the co-defendants (refer to Supreme Court Decisions 82Do898 delivered on June 22, 1982; 82Do100 delivered on September 14, 1982, etc.).

The court below affirmed the judgment of the court of first instance which acquitted the co-defendant of this part of the charges on the ground that the part in the statement that the co-defendant exchanged each check that he stolen through Defendant 2 as shown in Nos. 3 through No. 5 of the table of crime 1 through No. 5 of the judgment of the court below among the police and the protocol of interrogation of the prosecution against the co-defendant of the court below is not admissible as the co-defendant's testimony in the first instance court of the court of first instance, and there is no other evidence to acknowledge the facts charged in No. 1 through No. 5 of the table of crime No. 3 of the judgment of the court below. In light of the above legal principles and records, the above measures of the court below are just and acceptable, and there is no error of law such as misunderstanding of legal principles

3. Conclusion

Therefore, each appeal is dismissed, and part of the detention days after the appeal is included in the original sentence against Defendant 1. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)