[1] The method of specifying the facts charged of violating the Act on the Control of Narcotics, etc., whose contents are narcotics administered

[2] The case holding that the facts charged cannot be deemed to have been specified since the subject of the adjudication on the medication period, the quantity of administered Mesamines, the method of medication, etc., as stated in the facts charged, are not specified

[3] Substantial authenticity and admissibility of the suspect interrogation protocol prepared by the prosecutor

[4] Whether admissibility of evidence is recognized where a suspect interrogation protocol prepared by a prosecutor is not recognized as having substantial authenticity (negative)

[1] The purport of Article 254(4) of the Criminal Procedure Act, which states that "the facts charged shall be stated clearly stating the time, date, place, and method of a crime, shall be specified." The purpose of Article 254(4) is to ensure the efficiency and prompt trial by limiting the object of the trial, and at the same time to facilitate the exercise of the defendant's right to defense by specifying the scope of defense. As such, the prosecutor must consider the above three specific elements and describe specific facts that constitute the elements of a crime so that they can be identified from other facts. This also applies to the facts charged for the violation of the Act on the Control of Narcotics, Etc., which

[2] The case holding that the facts charged cannot be deemed to have been specified since the subject of the adjudication on the medication period, the quantity of the administered Mesamine, the method of medication, etc. as stated in the facts charged are not specified

[3] The main text of Article 312(1) of the Criminal Procedure Act provides that "a protocol in which a prosecutor makes a statement of a suspect or a person other than a suspect and a protocol in which a prosecutor or a senior judicial police officer recorded the result of inspection of evidence may be admitted as evidence when it is acknowledged to be genuine by the person making the original statement at a preparatory hearing or during a public trial." Here, the authenticity of establishment refers to both formal authenticity of the protocol, such as seal, signature and seal, and the actual authenticity that the protocol is written as the person making the original statement. The authenticity of establishment in the text of the above law does not stipulate any other method than the method recognized as "by the original statement". Thus, actual authenticity shall be deemed as recognizable only by the person making the original statement. This does not apply to the case where a prosecutor prepares a protocol of suspect interrogation prepared by the defendant

[4] If the protocol of interrogation of a suspect prepared by the public prosecutor who made the statement of the defendant as the suspect is not acknowledged to have the substantial authenticity, it shall not be used as evidence even if the statement of the defendant made in such protocol was made in a particularly reliable state.

[1] Article 254(4) of the Criminal Procedure Act, Articles 4(1) and 60(1)3 of the Act on the Control of Narcotics, Etc. / [2] Article 254(4) of the Criminal Procedure Act, Articles 4(1) and 60(1)3 of the Act on the Control of Narcotics, etc. / [3] Article 312(1) of the Criminal Procedure Act / [4] Article 312(1) of the Criminal Procedure Act

[1] Supreme Court Decision 200Do3082 Decided October 27, 200 (Gong2000Ha, 2483) Supreme Court Decision 2005Do7465 Decided December 9, 2005 (Gong2006Sang, 150) Supreme Court Decision 2005Do7422 Decided January 11, 2007 / [3] Supreme Court en banc Decision 2002Do537 Decided December 16, 2004 (Gong205Sang, 173) / [4] Supreme Court Decision 83Do1718 Decided November 25, 1986, Supreme Court Decision 87Do1507 Decided September 8, 1987

Defendant 1 and one other

Defendants and Prosecutor

Attorney Cho Jae-in

Seoul Central District Court Decision 2006No1561 Decided September 29, 2006

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. As to Defendant 1’s administration of philophones

Article 254(4) of the Criminal Procedure Act provides that "The statement of facts charged shall specify the time, date, place, and method of a crime so that the facts can be specified." The purpose of Article 254(4) of the same Act is to ensure the efficiency and swift trial by limiting the object of the trial and at the same time to facilitate the exercise of the defendant's right to defense by specifying the scope of defense by clarifying the scope of defense. As such, the prosecutor must state specific facts that constitute the elements of a crime in order to distinguish facts from other facts by comprehensively taking into account the three specific elements above (see Supreme Court Decisions 2000Do3082, Oct. 27, 200; 2005Do7465, Dec. 9, 2005, etc.). The same applies to the statement on the facts of a crime of violation of the Narcotics Control Act, the content of which is not a person handling narcotics, etc.

From August 2005 to November 20, 205, the part of the facts charged in the instant case that “Defendant 1, even though he is not a narcotics handler, was administered in such a way as to scambrates (meine camscamscamscamscamscamscamscamscamscamines into beerer or dilution with a single-use pamcamcamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamspamscamscamscamspamscamspamscamspamscamscamscamscamscamspamscamscamscamspamscamscamscamscamscamscamscamscamscamscamscams

Therefore, in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act, a public prosecution against the above part of the indictment shall be dismissed, and the judgment of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles as to the specification of the facts charged, as otherwise

B. As to the sales of philophones to the Defendants

The main text of Article 312(1) of the Criminal Procedure Act provides, “A protocol in which a prosecutor or a person other than a suspect makes a statement and a protocol in which a prosecutor or a senior judicial police officer made a result of inspection of evidence may be admitted as evidence at the time when it is admitted by the person making the original statement at a preparatory hearing or during a public trial.” Here, the term “the authenticity of establishment” refers to both the formal authenticity of the protocol, such as seal, signature and seal, and the actual authenticity that the protocol is written as the person making the original statement. Furthermore, the authenticity of establishment under the text of the above Act does not include any other method than “the method recognized by the original statement.” As such, actual authenticity is recognized only by the original statement, and it is not different in the case of the protocol of interrogation of a suspect who is the defendant prepared by the prosecutor (see Supreme Court Decision 2002Do537, Dec. 16, 2004). In addition, insofar as the actual authenticity of the protocol prepared by the defendant in the protocol prepared by the public prosecutor is not admissible as evidence.

Of the facts charged in the instant case, each protocol of examination of the suspect against the Defendants prepared by the prosecutor as evidence that corresponds to the sale of 14:0g philopon 10g from September 2005 against the Defendants among the facts charged in the instant case. Among them, each protocol of examination of Defendant 1 prepared by the prosecutor as to Defendant 1 is acknowledged as the formal authenticity of each protocol at the first instance court and the lower court, but there is no admissibility as it denies the substantial authenticity of the protocol to the effect that Defendant 1 had no memory as at the time of arrest, and the prosecutor’s protocol of examination of Defendant 2 prepared by the prosecutor as to Defendant 2 is not reliable on the grounds that there is no proof as to the above facts charged. In light of the records, the above judgment is just and there is no violation of the rules of evidence or the rules of evidence as otherwise alleged in the grounds of appeal.

C. As to the issuance of philophones to Defendant 1

Of the facts charged in this case, the court below found Defendant 1 not guilty on the ground that there is no proof as to the above facts charged on the ground that there is evidence that Defendant 1 delivered 0.53 g of philopon to the non-indicted at the front parking lot in the Yansan High-Speed Station on October 2005, and there is a statement in each protocol of examination of suspect against Defendant 1 and the non-indicted 1 in the first instance court and the court below and the investigation agency. Among them, each protocol of examination of suspect as to Defendant 1 prepared by the prosecutor as to the non-indicted 1 is not admissible for the reasons as mentioned in the above, and there is no credibility for the reasons as stated in its reasoning. In light of the records, the above judgment below is just, and there is no violation of the rules of evidence or the rules of evidence as otherwise alleged in the grounds for appeal.

2. As to the Defendants’ grounds of appeal

In this case where a minor sentence is sentenced to imprisonment with prison labor for more than ten years, the reason that the amount of punishment is unreasonable shall not be a legitimate ground for appeal.

3. As to Defendant 2’s ground of appeal

Examining the evidence admitted by the court below in light of the records, the judgment of the court below which convicted Defendant 2 of the smoking of marijuana is just, and there is no violation of the rules of evidence against the rules of evidence as otherwise alleged in the ground of appeal.

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)