Voluntary point and admissibility of suspect interrogation protocol prepared by prosecutor

When there are reasonable grounds to suspect that there is no voluntariness or voluntariness, since the written statement of the defendant prepared by the defendant, the protocol of interrogation of the defendant prepared by the prosecutor, and the written statement of the defendant made by the prosecutor are false in the psychological coercion state by coercion or intimidation of the investigator in charge, in light of the course of preparation or the falsity of the contents thereof, the defendant cannot use it as evidence of

Article 312 of the Criminal Procedure Act

Supreme Court Decision 80Do2688 Decided July 28, 1981, Supreme Court Decision 81Do2160 Decided October 13, 1981, Supreme Court Decision 81Do2160 Decided October 13, 1981

Defendant 1 and one other

Prosecutor and Defendants

Seoul Criminal District Court (78Gohap175, 226, 264)

The judgment of the court below is reversed.

A sentence to Defendant 2 shall be suspended.

Defendant 1: Not guilty

1. Summary of grounds for appeal;

The gist of defendant 1's appeal is that the above defendant was forced to take 0 billion won from the defendant who was the representative director of the non-indicted 1 corporation (name omitted) on December 197, 197 (hereinafter referred to as "the non-indicted 1 corporation"), but such money was not received as a bribe in connection with the defendant's duties, but it was merely received as 1 of non-indicted 1 (name omitted) which the defendant passed to the defendant 1 of the court below on August 197, 197, and the confession at the prosecution of the above defendant and the non-indicted 1 of the court below is too false without any discretion by investigators, and since the above defendant was forced to take 0 billion won from the defendant's office and the non-indicted 1 corporation (name omitted) on the non-indicted 1 of the court below's judgment, the court below's decision that the non-indicted 2 of the court below violated the rules of evidence and the non-indicted 1's protocol of suspect examination of the defendant and the non-indicted 1 of the defendant.

2. Therefore, we first examine Defendant 1’s grounds of appeal.

The judgment of the court below found the defendant guilty of the facts charged as to acceptance of bribe against the defendant, and stated each statement to the effect that it conforms to the facts indicated in the judgment of the court below (1) and part of the defendant's and the defendant's first trial court's statement of each protocol of interrogation of suspect suspect against the defendant and the defendant 1 of the court below (2) as evidence, and stated each statement to the effect that it conforms to the facts stated in the judgment of the court below (3) since the above evidence cited by the court below is written as evidence of each written statement of interrogation of suspect suspect as to the defendant

(A) Defendant 1 stated in the court below before and after remand to the court below on August 197 that he was aware of the fact that he was aware of the value of 1,00,00 won as well as 1,00 won at the Kinco at the end of the year, and there was no idea that he was able to receive the above value of 1,00 won for Defendant 1 to Defendant 1 (name omitted) in the court below around 20 years prior to and after remand to the court below. Defendant 1 did not agree to the above facts charged by Defendant 1 to the effect that he was able to receive the above 1,00,000 won without being able to do so, and there was no evidence that he was 10 days prior to and after remand to the court below's judgment and the court below's judgment prior to remand (name omitted) and there was no evidence that he was 00 days prior to and after the above 10 days prior to the above facts charged, and there was no evidence that he was 10,0000 days prior to the above 2000.

(나) 다음 검사가 작성한 피고인 1 에 대한 피의자신문조서와 진술조서 및 동 피고인이 검찰에서 작성한 자술서의 증거능력에 관하여 살피건대, 피고인 1, 원심피고인 1의 원심 및 환송전후 당심에서의 진술, 환송전 당심증인 공소외 2, 3, 4, 5, 환송후 당심증인 공소외 6, 원심피고인 1의 각 증언과 압수된 (작품명 생략) 1점(서울고등검찰청 1980년 압 제2호), 기록에 편철된 (명칭 생략)시 재무회계 규칙(공판기록 507정), 서정쇄신에 관한 각종지시사항중 일부 개선공문(공판기록 510정 내지 512정) 연도별 주철관구입현황 및 수의계약체결결의서(공판기록 514정 내지 538정)등을 종합하면, (명칭 생략)주철관주식회사의 탈세혐의에 관하여 수사를 하고 있던 대검찰청 소속 수사관들은 1978. 4. 4. 그 대표이사인 원심피고인 1로부터 뒤에서 보는 바와 같이 동인이 (명칭 생략)시장인 피고인 1에게 금 1,000,000원을 뇌물로 준 일이 있다는 진술을 듣게 되자 그 다음날인 동년 4. 5. 피고인 1의 신병을 대검찰청에 인수한 후 담당수사관인 공소외 6 등은 동 피고인에게 원심피고인 1로부터 금 100만 원을 뇌물로 수수한 일이 있지 않느냐고 추궁하였으나 동 피고인이 이를 부인하자 공소외 6은 이미 그러한 취지의 진술을 한 원심피고인 1을 대면시켜주고 그 당시 대검찰청에 파견나와 있던 경찰관 4, 5명과 함께 동 피고인은 구타하면서 뇌물수수를 시인하는 취지의 자술서를 쓰라고 강요하자 동 피고인은 마지 못하여 자술서를 쓰면서도 원심피고인 1로부터 받은 위 금 1,000,000원은 동 피고인의 직무와 관련하여 뇌물조로 받은 것이 아니라 원심피고인 1에게 1977. 8. 경 선물한 위 그림 1점에 대한 대금조로 받은 것이라는 내용의 자술서를 작성하였는데 공소외 6은 그 자술서를 찢어버리고 위 경찰관들과 함께 동피고인을 다시 구타하면서 위 금 1,000,000원을 (명칭 생략)시가 (명칭 생략)주철관이 생산 판매하는 주철관을 구매해 준데 대한 사례조로 받은 것이라는 내용의 자술서를 다시 작성하라고 강요하면서 이러한 과정을 2, 3회 반복하였으나 동 피고인이 계속 위 돈을 그림값으로 받은 것이라고 주장하자 공소외 6은 동 피고인에게 심리적 압박을 가하기 위하여 동 피고인이 들을 수 있도록 동 피고인이 있는 자리에서 시외전화를 이용하여 그 당시 부산소재 (명칭 생략)주철관주식회사의 본사에서 수사중인 수사관들에게 부장검사의 지시이니 (명칭 생략)시의 건설국장과 수도과장을 서울대검찰청으로 연행하고 (명칭 생략)시에 대한 전면수사를 시작하라고 지시를 하자 이를 듣게 된 동 피고인은 자기 때문에 부하직원들이 고생을 하게 된다면 시장으로서의 도리가 아니라고 생각하고 담당 수사검사에게 뇌물수수를 시인하는 내용의 자술서를 쓰겠으니 그대신 부하직원 및 (명칭 생략)시에 대한 전면수사를 중지해 줄 것과 동 피고인을 불구속 수사하고 의원면직형식으로 처리해 줄 것을 요구하며 그 승락을 받은 후 담당수사관인 공소외 6이 불러주는대로 동 피고인이 (명칭 생략)주철관주식회사가 생산하는 닥타일주철관 등의 상수도기자재를 (명칭 생략)시가 구매하여 준 사례조로 원심피고인 1로부터 금 1,000,000원을 뇌물조로 수수하였다는 취지의 자술서(서울지방검찰청 78형 제19312호 기록중 25내지 26정)를 쓰게 되었고 공소외 6은 곧이어 이를 기초로 동 피고인에 대한 진술조서(위 기록 28 내지 31정)와 피의자신문조서(의 기록 90내지 95정)를 타자하여 작성한 사실 및 위 자술서 및 진술조서 등은 수사관인 공소외 6이 불러주는대로 작성되었기 때문에 (명칭 생략)시 재무회계규칙(증 제75호)에 의하면 수도사업에 관한한 수도과장이 상수도특별회계에 있어서 징수관, 경리관, 물품관리관으로서 수도공사 및 기자재구매계약 등 예산집행의 업무를 고유업무로서 전결 처리해왔고(1975. 8. 13.자 서정쇄신업무추진지침 제2호에 의하여 일시 기관장인 시장이 위 업무를 전결 처리한 일이 있으나 1977. 4. 6. 서정쇄신에 관한 각종 지시 사항중 개천지시에 의하여 다시 본래대로 환원되었다)시장은 상수도관의 예정가격 사정만을 관장하고 있었음에도 불구하고 위 자술서에는 동 피고인이 “경리관”이라고 기재되어 있고 위 진술조서에도 “수도사업특별회계 경리관을 겸직하면서 수도사업에 관한 예산집행과 구매행위도 하고 있다”는 (위 기록 28정)등 객관적 사실과 다른 기재가 되어있는 사실(이는 수사관 공소외 6이 원심상피고인 2, 3, 상 피고인 2 등을 수사하면서 동인들이 상수도특별회계에 있어서 경리관인 사실을 알고 (명칭 생략)시장인 피고인 1도 경리관인 것으로 착각하여 그렇게 불러주었고 피고인 1이 그이를 그대로 받아쓰게 되어 잘못 기재된 것이다)을 각 인정할 수 있는바, 위 인정사실에 의하면 동 피고인이 작성한 자술서나 검사 작성의 동 피고인에 대한 진술조서 및 피의자신문조서의 위와 같은 작성경위 및 그 내용의 허위성에 비추어 위 자술서, 진술조서 및 피의자신문조서의 자백은 대검찰청에 파견된 경찰관들의 폭행과 담당수사관의 강요 및 검찰이 (명칭 생략)시청에 대한 전면수사를 하여 부하 직원들이 고생할지도 모른다는 심리적 강박상태에서 허위로 이루어진 것으로서 임의성이 없거나 임의성이 없다고 의심할 만한 상당한 이유가 있다고 할 것이니 그 증거능력이 있다고 할 수 없으므로, 비록 동 피고인이 원심법정에서 검사가 작성한 동 피고인에 대한 피의자신문조서의의 진정성립과 임의성을 인정하고 그밖에 검사가 제시한 동 피고인이 작성한 자술서 및 검사가 작성한 동 피고인에 대한 진술조서 등을 증거로 하는데 동의하였다고 하더라도 이러한 것들을 동 피고인에 대한 본건 공소사실을 인정할 증거로 사용할 수는 없다고 할 것이다. ( 대법원 1981. 7. 28. 선고, 80도2688 판결 ; 1981. 10. 13. 선고, 81도2160 판결 )

(C) Comprehensively taking account of the suspect interrogation protocol, statement statement and statement prepared by the prosecutor of the court below as to the defendant 1 and the defendant 1's statement prepared by the prosecutor of the court below, the defendant 1, the representative director of the main office of the court below, is connected to the above 35 and truck documents by the prosecutor of the Supreme Prosecutors' Office on March 9, 1978, and without detention warrant (the detention was executed by the warrant issued on April 5, 197) (the name of the court below was omitted), since it was impossible for the prosecutor to find that there was no illegality except for the non-performance of the part concerning transportation expenses of the defendant 1, the prosecutor of the court below, and the defendant 1, the defendant 1, who was forced to appear to be a public official of the court below to have been forced to make an investigation into the defendant 1, the defendant 4 and the defendant 1, the defendant 1, who was forced to appear to have been allowed to use the above suspect's suspect's suspect's 6-related documents, despite the direction of the investigation.

In addition, according to the testimony of Non-Indicted 2 at the trial prior to the remanding of the case, it cannot be used as evidence to prove the facts charged as above, and it cannot be used as evidence to prove the facts charged against the defendant. Furthermore, according to the testimony of Non-Indicted 2 at the trial prior to the remanding of the case, it cannot be admitted as evidence to acknowledge the facts charged against the defendant, and the statement of Non-Indicted 2 prepared by the prosecutor as to Non-Indicted 2 does not contain any content to acknowledge the facts charged, and there is no other evidence to prove the facts charged that the above 1,00,000 won was received as a bribe in relation to his duties.

(D) Meanwhile, even if Defendant 1 and Defendant 1 were to have the above-mentioned testimony prepared by the prosecution, Defendant 1 and each suspect's interrogation record, etc. on Defendant 1 were admissible, Defendant 1's own testimony, statement and suspect interrogation record, etc. (title omitted) were to be contrary to objective facts such as that the market is a waterworks business operator, and the above 1,00,000 won was received from Defendant 1, not as bribe, but as it was ordered by the prosecution of the court below to receive the above 0-year amount of money from Defendant 1 and the above 0-year amount of money to be delivered to Defendant 1, and it is hard to view that Defendant 1 and the above 0-year amount of money were to have been delivered to the public prosecutor's office for the above 0-year amount of money to be delivered to Defendant 1 and the above 0-year amount of money to be delivered to Defendant 1 and the above 0-year amount of money to be delivered to the public prosecutor's office as well as the above 0-year amount of evidence.

(E) Ultimately, although there is no evidence to prove the facts charged against Defendant 1, the court below erred by misunderstanding the facts contrary to the law of physical evidence that found Defendant guilty of the facts charged against the Defendant. Thus, the grounds for appeal on this point are justified, and therefore, the judgment of the court below against the Defendant cannot be reversed.

3. The grounds of appeal by Defendant 2 are examined as follows.

(A) According to the above defendant's statement in the court below and the court below prior to the remand of the defendant's case as to the violation of the physical evidence law, which is the first point in the grounds for appeal, and the mistake of facts, the defendant's statement in the court below and the court below after the remand of the case can be seen as a scambly showing a little degree of coercion of confession from investigators in the process of being investigated into the facts of the crime of bribery in this case at the Supreme Prosecutors' Office, but according to the witness non-indicted 6's testimony, the non-indicted 6, an investigator, was merely charged with investigating the defendant 1, who is the above defendant 2, and the non-indicted 6 did not know who is the defendant 2. However, according to the witness's testimony in the court below, the defendant 2 prepared only the suspect examination of the defendant 2, who did not force the confession of the defendant, or in the process of preparing the witness statement and the suspect examination of the defendant before the court below, it cannot be found that there is no evidence that the confession or voluntary confession of the defendant's evidence.

(B) Before determining the grounds for appeal on the grounds of unfair sentencing, the lower court ex officio examined the facts of the Defendant 2’s instant crime by applying Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 129(1) of the Criminal Act. However, the said Act was amended by Act No. 3280 (Notice on December 8, 1980), and pursuant to Article 2(1)2 of the amended Act, prior to the amendment (amended by Act No. 2(1)2, (200,000 won and less than 20,000,000 won) is deemed to be prior to the amendment, and thus, the lower court’s decision cannot be deemed to have been relieved of the Act on the Aggravated Punishment, etc. of Specific Crimes, since it cannot be deemed that there were errors in applying the Act.

4. Therefore, the judgment of the court below is reversed as to Defendant 1, who does not need to be examined on the grounds of appeal on unfair sentencing against each of the Defendants by the Defendants and the prosecutor, under Article 364(6) of the Criminal Procedure Act, and as to Defendant 2, under Article 364(2) and (6) of the same Act, and it is again decided as a member after pleading.

(A) The part on Defendant 2

On December 1, 1975, when the defendant concurrently holds office as the director general of the City Water Services Bureau (title omitted), and purchases approximately KRW 1,00,000,000,000 which is provided through the vice president of the relevant company through the vice president of the relevant company, in the case where he receives KRW 1,00,000,00 which is provided through the vice president of the relevant company, and receives the bribe in relation to his duties, from the (title omitted) in the office of the Seoul Water Services Bureau of the Seoul Water Services on the first and the second half of December 1975, at the time when he performs the affairs related to the water services, such as the purchase of construction works and equipment, the purchase of construction works, and the execution of the relevant budget, etc.

The facts of the ruling shall:

1. The statement to the effect that it conforms to the facts set forth in the original judgment by the defendant and the defendant 1 of the original judgment.

1. A statement to the effect that it conforms to the facts set forth in the judgment of the court below by the defendant 1 after remanding.

1. Each statement made to the same effect as the facts indicated in the suspect interrogation protocol and statement of the defendant prepared by the prosecutor.

1. In full view of the facts stated in the Defendant’s written statements, the proof is sufficient.

According to the law at the time of action, according to Articles 2(1) and 129(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes before the amendment, and Article 129(1) of the Criminal Act at the time of trial, since the punishment is changed due to the change of law after the crime, the punishment shall be imposed pursuant to Articles 1(2) and 50 of the Criminal Act, a corporation at the time of minor trial under Article 129(1) of the Criminal Act, and the defendant shall be punished by imprisonment for up to 8 months within the term of punishment, or the defendant has provided services for the country for a long time, and there are reasons to consider the motive leading to the crime at the time of this case, so the sentence shall be suspended by applying Article 59 of the Criminal Act, and since it is impossible to confiscate a bribe that the defendant received as the crime at the time of this case, the sentence shall be suspended by applying Article 134 of the Criminal Act to the defendant as above.

(B) The part on Defendant 1

The summary of the facts charged on the defendant's health is "(title omitted)" that the defendant purchases approximately KRW 2,30,000,000, which is provided as a case (title omitted) at the market price of the defendant 1 in the year of 77 years from December 197 at the (title omitted) market office where the defendant 1 is the representative director, and receives approximately KRW 2,30,000,00,00, which is provided as a case of the above (title omitted), since the above facts charged are already stated in the judgment on the grounds for appeal since there is no evidence to acknowledge that the defendant received the above amount of KRW 1,00,00,00 as a bribe in relation to his duties, since there is no evidence to support that the defendant received it as a bribe in relation to his duties, such as the above amount of KRW 1,00,000,000, in the case where the defendant had been the representative director.

It is so decided as per Disposition for the above reasons.

Judge Final (Presiding Judge)