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(영문) 대법원 2019.03.28 2018도13685
특정경제범죄가중처벌등에관한법률위반(횡령)등
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Judgment on the Defendant’s grounds of appeal

A. (1) Article 318(1) of the Criminal Procedure Act provides that “The documents or articles on which the prosecutor and the criminal defendant agree shall be admissible as evidence when deemed to be genuine” and does not limit the method to be deemed genuine. Thus, documents or articles with the consent of the court may be admitted as evidence if deemed to be genuine in light of all the circumstances.

In addition, even though the declaration of consent to evidence can be cancelled or withdrawn before the completion of the examination of evidence, since the cancellation or withdrawal is not recognized after the examination of evidence is completed, the admissibility acquired before the cancellation or withdrawal shall not be lost.

(2) On the other hand, except in cases of an obvious clerical error in the protocol, the document recorded in the protocol of trial is proved only by the protocol, and its probative value is absolute inasmuch as the Defendant’s opinion on whether consent or authenticity is established is recorded in the evidence list other than the protocol of trial, the statement in the evidence list has absolute probative value unless it is an obvious clerical error as part of the protocol of trial (see, e.g., Supreme Court Decision 201Do12571, Jun. 14, 2012). (3) Examining the record in light of the aforementioned legal doctrine, the recording of conversations between U andO among the document submitted by the prosecutor as evidence by the prosecutor and the evidence recorded in the protocol of trial (Evidence No. 8) and the evidence of the Defendant’s signature on September 29, 2008 (Evidence No. 1571, Sept. 29, 2008).

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