In a case where a husband installed a recording device in his/her own residence and recorded a conversation and a new voice, etc. between his/her wife and another male who is suspected of committing adultery, and submitted the recording as evidence for the crime of adultery, the case holding that the above conversation and the new voice part cannot be admitted as evidence.

In a case where a husband installed a recording device in his/her own residence and recorded a conversation and a new voice, etc. between his/her wife and another male who is suspected of committing adultery, and then submitted the recording as evidence for a crime of adultery, the court held that the recording of the conversation is inadmissible under Articles 14(2) and 4 of the Protection of Communications Secrets Act, and that the recording of the conversation is not admissible under the provisions of Articles 14(2) and 4 of the Protection of Communications Secrets Act, and that it cannot be admitted as admissibility under the provisions of Article 17 of the Constitution, in light of the legislative purpose of the above law, even if it is difficult to interpret it as constituting a "alternative" under the above law, or in light of the legislative purpose

Article 241 of the Criminal Act; Articles 311, 312, and 313(1) of the Criminal Procedure Act; Articles 4 and 14(2) of the Protection of Communications Secrets Act; Article 17 of the Constitution

[Plaintiff-Appellant-Appellee] Plaintiff 2005 (Gong2006Sang, 207)

Defendant 1 and one other

Staff Gyeong-won

Attorneys Cho Jong-soo et al.

Defendants are innocent.

1. Summary of the facts charged

The summary of the facts charged of this case is as follows: “Defendant 2 is a person who is legally married with Nonindicted Party 1 on November 23, 1981, and Defendant 2 is a defendant 2, around 10:50 on September 28, 2006, at the above defendant’s house located in Seodaemun-gu Seoul, Seodaemun-gu, Seoul (name omitted apartment), 302 702 dong 462, and 702, Defendant 1 and the above defendant 2 was sexual intercourse with Defendant 1 at the same time and at the same place, even though he is aware that he is the spouse of Defendant 2, he was sexual intercourse with the above defendant once.”

2. Determination:

The transcript (No. 12, No. 60 of the investigation records, No. 12, No. 60 of the first transcript of the investigation records, “the transcript of this case”, and the second transcript of the investigation records No. 130 of the investigation records, “the second transcript of this case”) shall be used as evidence of submission by the prosecutor which can prove the facts charged.

First of all, we judge the admissibility of each recording of this case.

In general, in cases where the court conducted verification as to whether the contents of the recording form and the contents of the recording tape are identical to those of the accused's statement as evidence of facts charged, the recording tape is itself a conversation recorded in the recording tape. Among them, unless the accused agrees that the recording tape can be used as evidence because it is different from the documents of the accused's statement in addition to the provisions of Articles 311 and 312 of the Criminal Procedure Act, the defendant's statement in the recording tape verification protocol can be used as evidence. In order to use the defendant's statement in the recording tape verification protocol as evidence, it shall be proved that the contents of the defendant's statement recorded in the recording tape have been recorded as stated by the complainant's statement at a court date, etc., and it is conducted under particularly reliable circumstances. The recording tape is without any signature or seal of the author or person's statement, and if it is hard to prove the contents of the recording tape's statement in light of its nature or specific technology, it shall be 200 original or 250 original copy, etc.

According to Non-Indicted 1’s legal statement and the result of this Court’s verification, Non-Indicted 1’s statement, Non-Indicted 3’s statement, Non-Indicted 1 was installed in the ASEAN on September 28, 2006 in the places in which he and Defendant 2 reside, and recorded the conversations of the Defendants and the sound generated in addition thereto. Non-Indicted 1 also opened the 2-1 transcript of this case’s recording as recorded in the 6-2 transcript of this case’s statement to the police. Non-Indicted 3’s recording of this case’s recording of this case’s recording of this case’s 3-1’s recording of this case’s recording of this case’s recording of this case’s 2-1’s recording of this case’s recording of this case’s recording of this case’s 3-1’s recording of this case’s recording of this case’s recording of this case’s recording of this case’s recording of this case’s recording of this case’s 3-1’s recording of this case’s recording of this case’s recording.

Therefore, the recording No. 1 of this case is hard to recognize the admissibility of evidence because only part of the conversation or sound, which can be heard from the recording device of the ice pent, is recorded, and the recording No. 2 of this case also contains an issue of admissibility of evidence as a whole, since a considerable part of the content of the recording cannot be confirmed. However, the recording No. 2 of this case also contains an issue of admissibility of evidence as it is not directly related to the facts charged of this case since it is not directly related to the facts charged of this case after the recording No. 2 of this case. 3 of this case (hereinafter referred to as "the conversations of this case") and the corresponding part of the 12-23 side (hereinafter referred to as "the rear part of this case") and the corresponding part of the 4th or 5 side of the recording No. 1 of this case.

Meanwhile, the Protection of Communications Secrets Act, without recourse to the provisions of this Act, the Criminal Procedure Act, or the Military Court Act, provides that any person shall not censorship mail, wiretapping telecommunications, or record or listen to conversations between others that are not open to the public (main sentence of Article 3). The mail or its contents obtained through illegal censorship in violation of this provision, and the contents of telecommunications known through or recorded through illegal wiretapping shall not be used as evidence in a trial or disciplinary procedure (Article 4). In addition, anyone shall not record conversations between others that are not open to the public or listen to the recording or listening by electronic or mechanical means (Article 14(1)), and the provisions of Article 4 shall apply to recording or listening by electronic or mechanical means (Article 14(2)).

Thus, the above part of the conversation of this case recorded a conversation between others that is not open to the complainant, so it is not admissible pursuant to the provisions of Articles 14(2) and 4 of the above Act, and even if the recording place is the complainant's residence, Defendant 2 cannot be judged differently as long as the complainant is a co-resident.

Next, it is sufficient to view that the sound recording, such as “A-h-h”, falls under the category of “a conversation between other persons not open to the public” that cannot be used as evidence under the aforementioned provisions of the Protection of Communications Secrets Act. In light of the grammatic interpretation of “alternativeization”, it is difficult to deem that the “new obscenity” immediately falls under the conversation. However, inasmuch as the act prohibited from being used as evidence in criminal proceedings, in particular, as long as the original legislative purpose of the above law is to protect privacy and realize human dignity by preventing the use of it as evidence in criminal proceedings, it is difficult to view that the recording of the sound, such as the new obscenity arising from the so-called pet act, such as a petry or sexual intercourse, is also located within the regulatory scope of the above law. The issue seems to be difficult to view that the act of recording or exposing the private life, such as the maintenance of social interests and private life rights that may be infringed during criminal proceedings, is an infringement of the right to privacy of the public, and the method to establish it as evidence the crime of protecting the public interests of the crime of this case.

Finally, in relation to the rear part of this case, it is difficult to view the above part as a "unpublic conversation" in the recording and sound recorded in the process that the complainant forcedly opened the door of the above residential area and enters the police, and it is difficult to view that the above part is an unpublic conversation. Therefore, the latter part of this case's conversation is admissible as evidence.

However, within the conversation or sound part of the back of the instant case, there is no statement that can directly prove the facts charged of the instant case and there is no other evidence to prove the facts charged of the instant case.

Ultimately, the facts charged in the instant case constitute a case where there is no proof of crime, and thus, the judgment of innocence is rendered pursuant to the latter part of Article 325

Judges Shin Jiny