Whether a request for examination of suspect may be made by means of preservation of evidence and admissibility of evidence.

As it is impossible to request the examination of suspect by the method of a preservation of evidence, any statement made by a suspect in the record of preservation of evidence is inadmissible.

Article 184 of the Criminal Procedure Act

On November 28, 1972, 72Do2104, (Supreme Court Decision 10307, Supreme Court Decision 203No-52, Supreme Court Decision 184 (2) 1420, Supreme Court Decision 77Do270 Decided December 13, 1977, Supreme Court Decision 77Do270 Decided November 28, 197 (Article 184(3) of the Criminal Procedure Act, Court Gazette 5777, Court Gazette 10520)

Defendant

Busan District Court Msan Branch (80 High 264)

The appeal is dismissed.

95 days under confinement prior to the rendering of judgment prior to the rendering of judgment shall be included in the original judgment.

The gist of appeal by the defendant and his defense counsel is to recognize the crime of rape and abandonment of the above crimes against the defendant, but it is not possible to view that the defendant committed the above crimes and committed each crime on the records, but the defendant again at the time of the above crimes. The defendant's statement of confession on November 1, 1980, Busan District Court assistance 80 seconds, some of the contents of the protocol of examination of evidence of the defendant in the above case of request for preservation of evidence, and the contents of the protocol of examination of evidence prepared by a judicial police officer on November 8, 1980, and the five-time examination of the defendant on November 29, 1980, which were not admissible. The court below found that the defendant's confession and confession of the above crimes were not admissible by the police officer on November 1, 1980, and it is not necessary to establish evidence again at the time of confession of the above crimes, and thus, it is unreasonable to view that the defendant again made a confession within the police station of Busan District Prosecutors' Office to prove the facts.

Of the evidence cited by the court below as evidence of guilt, the following facts are examined: (1) The statement of the court below witness 1, 2, and 3 was made to himself when the defendant is examined as a suspect at the police, and it is so-called hearsay evidence. This statement is made by the police at the time when the defendant, who is the original person, was investigated by the police at the time when the defendant was investigated as a suspect. When the defendant made this statement, the witness 1, and 2 is the criminal investigation officer in charge of this case. Although the witness 3 is not a police officer dealing with this case, unless there are special circumstances, it cannot be deemed that the statement of the original person is made under particularly reliable circumstances. (2) The copy of the interrogation protocol of the defendant in the case requesting the preservation of evidence against the defendant cannot be claimed as a method of preserving evidence, and thus, it is not admissible as evidence of the defendant's statement and the copy of the interrogation protocol of the case for which the defendant made the original person made the statement at the time when the defendant again was made.

Therefore, since each of the above evidence cannot be admitted as evidence of guilt, it is illegal that the court below made it a part of comprehensive evidence.

However, the evidence cited by the court below as evidence of guilt is all duly examined and adopted by the court below, which has pride in the admissibility of evidence, and it is sufficient to recognize the guilty of this case with other evidence even if the court below excludes each of the above evidences illegally adopted by the court below. Thus, the above illegality is not affected by the judgment.

In addition, considering the defendant's age, character and conduct, intelligence, environment, motive, means, result, and all circumstances that are the conditions of sentencing indicated in the records, such as the defendant's age, character and conduct, intelligence, environment, and circumstances after the crime, the sentencing of the court below is not deemed reasonable and unreasonable.

Therefore, the judgment of the court below is just, and since an appeal is groundless, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, and the ninety-five days of detention days prior to the pronouncement of judgment shall be included in the sentence of the court below in accordance with Article 57 of the Criminal Act. It is so decided as per Disposition.

Judges Ahn Yong-chul (Presiding Judge) (Presiding Justice)