Requirements for recognizing admissibility of the protocol of interrogation prepared by the prosecutor who recorded the defendant's statement, and the method of recognizing actual authenticity by the defendant's statement;

A protocol in which a public prosecutor made a statement of a suspect by the defendant is written in the same manner as the written statement before the public prosecutor is admitted as evidence, i.e., that its content is identical to that of the written statement before the public prosecutor. The same means that the written statement must be written as well as that of the written statement that the content of the written statement is not written as if the written statement was not written. In addition, in cases where the Criminal Procedure Act clearly prescribes the procedure for preparing a protocol and the process of protocol and the substantive authenticity are established, and where the defendant denies the actual authenticity of protocol, the method of proving that the written statement is the same as the written statement by the defendant is written by the objective method, such as video recordings, is prepared, the recognition of the actual authenticity by the defendant's statement shall be based on the written statement made by the defendant at a preparatory hearing or during the public trial. The mere fact that the defendant did not raise any objection to the actual authenticity, or that the process for preparing a protocol and the method of protocol are recognized should not be readily concluded as having acknowledged the actual authenticity. Moreover, barring special circumstances.

Article 312(1) and (2) of the Criminal Procedure Act

Defendant

Defendant

Attorney Lee Sang-hoon

Suwon District Court Decision 2011No970 decided June 2, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on admissibility of the suspect examination protocol prepared by the prosecutor

A. In order to realize the principle of due process stipulated in Article 12(1) of the Constitution and the right to a fair trial guaranteed under Article 27 of the Constitution, the Criminal Procedure Act is based on the trial-oriented principle, oral argument principle, and direct hearing principle. Therefore, in cases where the Criminal Procedure Act satisfies certain requirements with respect to written evidence, such as the protocol, etc. prepared by an investigative agency, the admissibility of evidence is exceptionally permitted in consideration of the ideology of discovery of substantive truth and the request for the economy of litigation, so the provisions on the requirements for recognition of admissibility of evidence should be interpreted and applied strictly.

Article 312(1) of the Criminal Procedure Act provides that “A protocol in which a public prosecutor has made a statement of a suspect who is the defendant, shall be admissible as evidence, only when it is acknowledged by the defendant’s statement at a preparatory hearing or during a public trial that it was made in accordance with due process and method, and the same contents as the defendant stated, and it is proved that the statement recorded in the protocol was made in a particularly reliable state.” This substantial authenticity can be admitted as evidence, and such substantial authenticity is recognized only by the defendant’s statement at a preparatory hearing or during public trial. However, Article 312(2) provides that “Where the defendant denies the authenticity of the formation of the protocol, notwithstanding paragraph (1), if it is proved by a video product or any other objective means that the statement recorded in the protocol is the same as the defendant stated, and it is proved that the statement recorded in the protocol was made in a particularly reliable state, it may be admitted as evidence, and it may be open to admit the authenticity of the protocol by an objective method, such as a video product of the defendant.”

Therefore, it can be admitted as evidence that the protocol in which the prosecutor stated the statement of the suspect who was the defendant, separate from the procedure of preparation and the method of preparation, and that the content is the same as that stated before the prosecutor. Here, the same means that the content of the protocol should be stated as the statement, as well as that of the statement in which the content of the statement was not stated.

In addition, as above, the Criminal Procedure Act clearly distinguishess the procedure for preparing a protocol and the process of protocol and the actual authenticity. In addition, in a case where the defendant denies the actual authenticity of protocol, the defendant has prepared a method to prove that he/she has the same contents as the defendant stated by objective means, such as video-recording, etc., the recognition of actual authenticity by the defendant's statement should be based on the explicit statement made at a preparatory hearing or during a public trial, and only the fact that the defendant did not object to the actual authenticity or recognized the legality of the procedure for preparing a protocol, it shall not be deemed that the actual authenticity has been recognized. In addition, barring any special circumstance, the so-called "act of denying the authenticity of evidence" statement should not be readily concluded that it only contests the probative value on the premise that the authenticity of protocol is recognized.

In the meantime, where the court recognizes the actual authenticity only with respect to the part of the protocol prepared by the prosecutor who made the statement in question, it shall admit the admissibility of evidence only for the part in which the part in the protocol is written as the statement and which is written as stated after specifically examining which part is written. The admissibility of evidence should be denied for the other portion whose actual authenticity is not recognized.

B. The court below held that even if the defendant denies the authenticity of the suspect interrogation protocol of this case to the effect that the defendant denies the authenticity of the suspect interrogation protocol of this case prepared by the prosecutor (hereinafter "suspect interrogation protocol of this case"), the defendant consented to the interrogation protocol of this case as evidence on the fourth trial date of the court of first instance and the court of first instance completed the examination of evidence on the fourth trial date, it cannot be viewed that the admissibility of evidence is lost even if the defendant denies the authenticity of the suspect interrogation protocol of this case to the effect that the defendant denies or withdraws his/her expression of consent to the interrogation protocol of this case when the court below reached

C. However, we cannot accept the above determination by the court below for the following reasons.

According to the records, the defendant denied the crime as stated in the facts charged on the date of the first trial of the court of first instance, and there is no reversal of it, and the defendant's protocol of evidence submitted by his defense counsel after the date of the first trial of the court of first instance is "the formation of formal authenticity, voluntariness, and denial of the purport of proof" as to the protocol of suspect examination of this case on the date of the fourth trial of the court of first instance. After that, the court of first instance made an examination of evidence on the protocol of suspect examination of this case on the date of the fourth trial of the court of first instance, only the sign "○", which indicates "the formation and voluntariness," and it seems that the defendant or his defense counsel did not explicitly recognize or denies the actual authenticity of the protocol of suspect examination of this case until the date of the fourth trial of the examination of evidence of this case until the date of the examination of evidence, and the defendant did not know the fact that "the defendant did not know the fact that he did not appear in the meeting of the prosecutor's office's order and the defendant's order."

In light of the aforementioned facts in light of the legal principles as seen earlier, the Defendant merely recognized “the formation of formal authenticity” through the evidence department submitted by the first instance court as to the authenticity of the interrogation protocol of this case. Thus, even though the indication “○” is simply “the establishment recognition” without distinguishing the formation of formal authenticity and actual authenticity from the evidence list in the fourth trial protocol of the first instance court, it cannot be readily concluded that the Defendant consented to the examination protocol of this case as evidence. Further, the purport of the examination protocol of this case can be seen as the entry in the protocol clearly recognized at the time of actual authenticity should be further examined and clarified. If it is unclear, in principle, the content of the examination protocol of this case cannot be used as evidence unless it is proven by an objective method, such as a video product, etc.

Nevertheless, the court below decided that the defendant consented to the interrogation protocol of this case as evidence during the fourth trial of the court of first instance and the examination of evidence was completed, and further, that the defendant denies the authenticity of the interrogation protocol of this case only when the defendant reaches the court below, and that the admissibility of evidence of the interrogation protocol of this case is recognized, the court below erred by misapprehending the legal principles as to the establishment of substantial authenticity of the interrogation protocol of this case, or by failing to exhaust all necessary deliberations. The ground of appeal disputing

D. Meanwhile, the lower court determined that the admissibility of the interrogation protocol of the Nonindicted Party prepared by the prosecutor was recognized, insofar as it was prepared in accordance with the due process and method, and the Nonindicted Party appeared as a witness on the third trial date of the first instance trial and the above interrogation protocol was the same as that it stated

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to admissibility of suspect interrogation protocol, contrary to what is alleged in the grounds of appeal.

2. As to the remaining grounds of appeal, including the misapprehension of legal principles

Based on the circumstances indicated in its reasoning, including the protocol of suspect interrogation of this case, the lower court determined that the Defendant, as stated in the facts charged in the instant case, conspired with the Nonindicted Party, etc., and conspired with the victim to apply for employment maintenance support based on the period of suspension different from the fact, thereby deceiving the victim and deceiving the victim under the name of the victim.

However, as seen earlier, the protocol of suspect interrogation of this case cannot be admitted as actual authenticity, so the court below erred by misapprehending the legal principles on admissibility of evidence of the protocol of suspect interrogation of this case, which recognized admissibility of evidence of the protocol of suspect interrogation of this case and deemed as evidence of guilt.

However, in light of the records, it is sufficient to find the Defendant guilty of the facts charged in this case even with the remaining evidence except the interrogation protocol of this case among the evidence presented by the court below, such as the interrogation protocol of the non-indicted person prepared by the prosecutor as evidence of guilt. Therefore, the conclusion that the court below found the Defendant guilty is justifiable, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to

3. Conclusion

Ultimately, the lower court erred by recognizing the admissibility of the protocol of interrogation of this case, but such error did not affect the conclusion of the judgment.

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)