Admissibility of admissibility of an interrogation protocol prepared by an investigative agency other than a prosecutor for another suspect in relation to the defendant and accomplice, and whether Article 314 of the Criminal Procedure Act is applied (negative)

Articles 312(3) and 314 of the Criminal Procedure Act

Supreme Court en banc Decision 2003Do7185 Decided July 15, 2004 (Gong2004Ha, 1393), Supreme Court Decision 2008Do5189 Decided September 25, 2008, Supreme Court Decision 2008Do10787 Decided May 28, 2009, Supreme Court Decision 2009Do2865 Decided July 9, 2009 (Gong2009Ha, 1386)

Defendant

Defendant

Law Firm Sejong, Attorneys Park Young-il et al.

Seoul High Court Decision 2009No170 decided July 2, 2009

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

The grounds of appeal by the defendant, public defender, or private defense counsel (to the extent of supplement in case of supplemental appellate briefs not submitted after the deadline for submission) are examined together.

1. As to the importation of philophones

The selection of evidence and the recognition of facts belong to the exclusive authority of the fact-finding court unless they are against logical and empirical rules. Examining the adopted evidence of the court of first instance maintained by the court below and the court of first instance in light of the records, the court below is justified in finding the defendant guilty of violating the Act on the Control of Narcotics, Etc., by importing phiphones on the grounds as stated in its reasoning, and there is no error of law such as

2. As to the sale of each philopon to Nonindicted 1 and 2 and the administration of philopon medication by a firstman on December 2006

Article 312(3) of the Criminal Procedure Act applies not only to the case where an investigative agency other than a public prosecutor's suspect interrogation protocol of the defendant prepared by the investigative agency other than the public prosecutor as evidence of guilt, but also to the case where an investigative agency other than the public prosecutor's prosecutor's suspect interrogation protocol or a protocol of suspect interrogation of another defendant or suspect who is co-offenders with the defendant is adopted as evidence of guilt against the defendant. The protocol of suspect interrogation prepared by the investigative agency other than the public prosecutor for other suspect who is co-offenders with the defendant is acknowledged as a authenticity by the suspect's court statement, if the defendant denies the contents of the protocol on the trial date, the admissibility is denied. As a result, Article 314 of the Criminal Procedure Act, which is an exception to the protocol of suspect interrogation, is not applied to the case where it is impossible to make a statement in the court due to reasons such as death, etc. (see, e.g., Supreme Court Decisions 2002Do2157, Jun. 14, 2002

원심은 “피고인이 (1) 2006. 12. 초순경 서울 강남구 신사동에 있는 이름을 알 수 없는 여관에서 공소외 1(2007. 1. 31. 사망), 공소외 2에게 필로폰 약 1ｇ을 30만 원에 매도하고, (2) 위 일시ㆍ장소에서 위 공소외 1, 2와 함께 필로폰 불상량을 1회용 주사기에 담고 생수로 희석한 다음, 각자 자신의 팔 혈관에 주사하는 방법으로 1회 투약하고, (3) 2006. 12. 7. 20:00경 서울 중랑구 상봉동에 있는 한국관 인근에서 위 공소외 1, 2에게 필로폰 약 1ｇ을 30만 원에 매도하였다.”는 각 공소사실에 대하여, 이에 부합하는 공소외 1의 각 경찰 피의자신문조서의 기재가 공소외 1이 사망하기 약 50일 전의 진술로서 내용이 구체적일 뿐 아니라 그가 사망 전에 허위진술을 할 이유가 없는 것으로 보이는 점 등에 비추어 볼 때 신빙성이 있다고 보아, 이를 증거로 채택하여 모두 유죄로 인정하였다.

However, the judgment of the court below cannot be accepted for the following reasons.

In light of the above legal principles, each police interrogation protocol of Nonindicted Party 1 is a suspect interrogation protocol of another suspect prepared by investigation agency other than the prosecutor or a suspect interrogation protocol of a co-suspect who is in a co-suspect relationship with the defendant, and Article 312(3) of the Criminal Procedure Act is applied to this case, and if the defendant denies the contents of the protocol on the trial date, the admissibility is denied, and it is not possible to exceptionally admit the contents of the protocol by Article 314 of the Criminal Procedure Act. According to the records, the defendant can be known that he denied the contents of each police interrogation protocol of Nonindicted Party 1 while denying the whole charged facts, its admissibility should be denied, and there

Nevertheless, the court below acknowledged the admissibility of each police interrogation protocol prepared by Nonindicted 1 and adopted it as evidence of guilt. The court below erred in the misapprehension of legal principles as to the admissibility of the interrogation protocol prepared by investigation agencies other than the prosecutor of another suspect who is an accomplice, which affected the conclusion of the judgment. The judgment of the court below in this part cannot be reversed

3. Conclusion

Therefore, the part of the judgment of the court below as to the above 2.2. Paragraph of this Article shall be reversed, and since one sentence is imposed on the relation of the remaining crimes with the concurrent crimes, it shall be reversed in its entirety without examining the remaining grounds of appeal, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent

Justices Kim Young-ran (Presiding Justice)