In cases where a defendant's right to inspect or copy the protocol of public trial is infringed, whether the defendant or witness's statement recorded in the protocol of public trial or the protocol of public trial can be admitted as evidence (negative); and in such cases, where the error using the protocol of public trial, etc. as evidence does not constitute unlawful

Article 55(1) of the Criminal Procedure Act recognizes the Defendant’s right to peruse or copy the protocol of trial in order to ensure the accuracy of the protocol of trial and to faithfully guarantee the Defendant’s right to defend, while Article 55(3) of the same Act provides that if the Defendant fails to comply with the aforementioned request, the Defendant’s right to peruse or copy the protocol of trial may not be admitted as evidence of guilt. Therefore, in a case where the Defendant’s refusal to comply with a request for perusal or copy of the protocol of trial but the court violated the Defendant’s right to peruse or copy the protocol of trial, it shall not be admitted as evidence of guilt, and the statement of the relevant Defendant or witness recorded in the protocol of trial shall not be admitted as evidence of guilt. In addition, in light of the contents of the protocol of trial in question, if the failure to peruse or copy the protocol of trial does not fall within the extent of infringing the Defendant’s right to defend or defense counsel, it cannot be said that such error affected the conclusion of the judgment even if it was used as evidence.

Article 55(1) and (3) of the Criminal Procedure Act

[Plaintiff-Appellant] Plaintiff 2003Na3282 delivered on October 10, 2003 (Gong2003Ha, 2214)

Defendant

Defendant

Seoul Central District Court Decision 2011No2451 Decided October 27, 2011

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the request for perusal and copy of the protocol of trial

A. Article 55(1) of the Criminal Procedure Act provides that, in order to ensure the accuracy of the protocol of trial and to faithfully guarantee the defendant's right to defense, the defendant's right to inspect or copy the protocol of trial shall not be admitted as evidence of guilt in a case where the defendant does not comply with the above request. Therefore, in a case where the defendant's refusal to request for inspection or copy of the protocol of trial but the court violated the defendant's right to inspect or copy the protocol of trial, the protocol of trial shall not be admitted as evidence of guilt, and the statement of the relevant defendant or witness recorded in the protocol of trial shall not be admitted as evidence (see Supreme Court Decision 2003Do3282 delivered on October 10, 203). However, it is sufficient to acknowledge criminal facts even if other evidence duly adopted and examined in addition to such evidence, in light of the contents of the protocol of trial, etc., if the failure to comply with the perusal or copy of the protocol of trial does not reach the extent of infringement of the defendant's right to defense or defense counsel, such error does not affect the judgment.

B. According to the records, the first instance court of this case found the defendant guilty of all the facts charged of this case by citing the statement of the defendant and witness as evidence of guilt and documentary evidence which the defendant agreed to be admitted as evidence. The lower court reversed ex officio the first instance court's judgment on the grounds that there are concurrent crimes under the latter part of Article 37 of the Criminal Act due to the defendant's previous criminal offense, and rejected the defendant's appeal as to mistake of facts, etc. on the grounds of the non-indicted witness's statement adopted at the lower court's judgment, and found the defendant guilty of all the facts charged of this case. In addition, in the summary of evidence of the facts charged of this judgment, the defendant added "a statement made by the court of the lower court and each written judgment" as evidence as to the facts of the previous offense in the judgment in addition to citing the corresponding part of the first instance judgment in the

Examining the above progress of the lower court’s procedure in light of the legal principles as seen earlier, the lower court’s finding the Defendant and the Nonindicted Party’s statements on the trial date as evidence violates Article 55(3) of the Criminal Procedure Act and erred.

C. However, the evidence adopted and examined by the first instance court after due process can be admitted as evidence in the appellate court (Article 364(3) of the Criminal Procedure Act). According to the records, even if the defendant and the non-indicted who cannot be admitted as evidence in the above reasons are excluded from the above legal statement of the lower court, it is determined that the facts of the crime acknowledged by the lower court can be sufficiently recognized even with the evidence adopted and examined by the first instance court and the judgment adopted by the lower court. In addition, in light of the fact that the contents of the statement made by the defendant and the non-indicted in the court of first instance as revealed by the records are not significantly different from those of the evidence employed by the first instance court, it is not recognized that the lower court's decision was seriously infringed upon the defendant'

Therefore, in the judgment of the court below, the error of using the statement by the defendant and the non-indicted as evidence in the court of the court below shall not be deemed to have affected the conclusion of the judgment. Thus, the argument in the grounds of appeal on this point is not accepted.

2. As to the remaining grounds of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court’s determination that the charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes was recognized is justifiable, and it did not err by exceeding the bounds of the principle of free evaluation of evidence in relation to the determination of evidence or fact-finding, or by misapprehending the legal doctrine on the violation of the Act on the Aggravated Punishment,

3. Conclusion

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

Justices Kim Chang-suk (Presiding Justice)