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(영문) 대법원 2013.09.12 2011도12918
공무집행방해등
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2, the Defendants’ allegation in this part of the grounds of appeal is merely to criticize the selection of evidence and fact-finding within the exclusive jurisdiction of the lower court, which is a fact-finding court,

2. As to the ground of appeal No. 3, Article 312(4) of the Criminal Procedure Act provides, “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 such protocol is recorded the same as the statement made before a prosecutor or senior judicial police officer, shall be proved by a statement at a preparatory hearing or during a public trial, a video-recording, or any other objective method, and the defendant or his defense counsel may examine the person who made the original statement at a preparatory hearing

According to the records, Y appeared to the court of first instance on the seventh trial date and made a statement to the effect that some of the written statements concerning himself prepared by the prosecutor do not have the same contents as Y's statement. There was no video recordings or other objective methods of proof which prove that the written statements in the court of first instance and the court of original instance are the same contents as Y's statement.

In such a case, the court below should have denied the admissibility of evidence after specifically examining what portion of the written statement of the prosecutor's Y, which was written differently from the statement, but maintained the first instance court's measure that recognized the admissibility of all the above written statement of the Y and adopted it as evidence. In such a case, the court below erred by misapprehending the legal principles of Article 312 (4) of the Criminal Procedure Act.

However, the first instance court duly adopted the other.

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