[1] The admissibility of documents printed from a digital storage medium

[2] Whether the case where the defendant refused to make a statement by exercising the right to remain silent against the prosecutor's question asked for the authenticity of documentary evidence constitutes "when a statement is unable to be made because there is any other similar cause" under Article 314 of the Criminal Procedure Act (negative)

[3] In a case where a document recording a statement becomes hearsay evidence when the authenticity of its contents is used as direct evidence against a crime, whether the document always becomes hearsay evidence even when it is itself that the statement was made, or when it is used as circumstantial evidence for an indirect fact unrelated to the authenticity of the statement (negative)

[1] In order to use the documents printed from the seized digital storage device as evidence, the identity of the documents stored in the digital storage device should be recognized. To this end, the original of the digital storage device should be guaranteed that the documents were not changed from the seizure to the printing out of the seized digital storage device. In addition, when using the documents printed from the seized digital storage device as the statement evidence, the hearsay rule is applied to the authenticity of the contents of the documents, so it may be used as evidence only when it is proven to be genuine by the maker or testimony of the person who made the statement at a preparatory hearing or during a public trial pursuant to Article 313(1) of the Criminal Procedure

[2] Article 314 of the Criminal Procedure Act provides that “When a person who needs to make a statement at a preparatory hearing or on a trial date is unable to make a statement due to death, illness, foreign residence, unknown whereabouts, or any other similar cause, the protocol and other documents may be admitted as evidence: Provided, That this shall apply only when it is proved that the statement or preparation was made in a particularly reliable state” provides that “when it is impossible to make a statement due to death, disease, foreign residence, unknown whereabouts, or any other similar cause, the defendant cannot make a statement due to which he/she is unable to make a statement because he/she is unable to make a statement due to other reasons” as an exception to the above admissibility of evidence, Article 314 of the former Criminal Procedure Act provides that “when he/she is unable to make a statement due to death, illness, or any other reason” and Article 314 of the former Criminal Procedure Act provides that “when he/she is unable to make a statement due to any other reason, he/she shall not be compelled to make a statement due to an exception to the Criminal Procedure Act Article 214.”

[3] Even if a document recording a statement becomes hearsay evidence when the authenticity of its content is used as direct evidence against a crime, it does not necessarily become hearsay evidence when it is used as circumstantial evidence for an indirect fact unrelated to the authenticity of the statement.

[1] Articles 307, 310-2, and 313(1) of the Criminal Procedure Act / [2] Article 12(2) of the Constitution of the Republic of Korea; Article 314 of the former Criminal Procedure Act (amended by Act No. 5054, Dec. 29, 1995); Article 314 of the former Criminal Procedure Act (amended by Act No. 8496, Jun. 1, 2007); Articles 283-2(1), 310-2, 312, 313, and 314 of the Criminal Procedure Act / [3] Articles 307, 310-2 of the Criminal Procedure Act

[1] Supreme Court Decision 2007Do7257 Decided December 13, 2007 (Gong2008Sang, 80), Supreme Court Decision 2010Do3504 Decided February 15, 2013 (Gong2013Sang, 528) / [2] Supreme Court en banc Decision 2009Do6788 Decided May 17, 2012 (Gong2012Ha, 1155)/ [3] Supreme Court Decision 99Do1252 Decided February 25, 200 (Gong200Sang, 890)

Defendant 1 and three others

Prosecutor

Law Firm aiming at Law, Attorneys Nam Sang-chul et al.

Seoul High Court Decision 2012No2667 decided December 7, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the admissibility of documents printed from digital storage media

A. Existence of admissibility under Article 313 of the Criminal Procedure Act

In order to use documents printed from a seized digital storage device as evidence, the identity of the documents stored in the digital storage device and printed out thereof must be recognized. To this end, the original copy of the digital storage device should not be changed from seizure to printing out documents. In addition, when using documents printed out from the seized digital storage device as statement evidence, the hearsay rule is applied to the authenticity of the contents recorded, so it may be used as evidence only when it is proven to be genuine by the maker or the testimony of the person who made the statement at a preparatory hearing or during a public trial in accordance with Article 313(1) of the Criminal Procedure Act (see Supreme Court Decision 2007Do7257, Dec. 13, 2007).

The lower court determined that the hearsay rule applies to the authenticity of the contents stated in the evidence list Nos. 157, 158, 414 (hereinafter “documents from Nonparty 1’s USB”), the evidence list Nos. 111, 132, 208-5, 208-6, 208-7, 208-9, 208-10 (hereinafter “documents for the discovery of Defendant 3’s computer”), the evidence list Nos. 148-2 (hereinafter “Defendant 2’s e-mail attachment documents”), the evidence list Nos. 426, 427 (hereinafter “documents for the submission of Nonparty 2”), and each of the above documents is not proven by the testimony of Defendant 1 or Defendant 2, at a preparatory hearing or during a public trial, and that the admissibility of evidence of each of the above documents cannot be acknowledged on the grounds that it is not permissible to acknowledge the authenticity of each document by any other means than the law.

Examining the reasoning of the judgment below in light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to admissibility.

B. Existence of admissibility under Article 314 of the Criminal Procedure Act

Article 314 of the Criminal Procedure Act provides, “In cases falling under Article 312 or 313, where a person who requires a statement at a preparatory hearing or on a trial date is unable to make a statement due to death, disease, foreign residence, unknown whereabouts, or any other similar cause, the relevant protocol and other documents may be admitted as evidence: Provided, That this shall apply only when it is proved that the statement or preparation was made in a particularly reliable state.” As for hearsay evidence for which the statement made by the person who made the original statement, etc. is not proven as admissible exceptionally, the foregoing provision stipulates, “when a statement is unable to be made due to death, disease, foreign residence, unknown whereabouts, or any other similar cause” (see Article 314 of the former Criminal Procedure Act, which was amended by Act No. 5054, Dec. 29, 1995; Article 314 of the former Criminal Procedure Act, which was amended by Act No. 8496, Jun. 1, 2007; Article 314 of the former Criminal Procedure Act, supra, is limited to the scope of foreign Criminal Procedure Act.

Meanwhile, the Constitution declares that all citizens shall not be forced to make a statement unfavorable to themselves in criminal cases (Article 12(2)), and the Criminal Procedure Act provides that a defendant may refuse to make a statement or refuse to make a statement for an individual question (Article 283-2(1)), thereby guaranteeing the right to refuse to make a statement as the right of the defendant.

In light of the language and purport of Article 314 of the current Criminal Procedure Act, the purport of amendment, and the contents of the provision on the right to refuse to make statements, etc., the case where the defendant refuses to make statements by exercising the right to refuse to answer the prosecutor's question askeding the authenticity of documentary evidence does not constitute "when it is impossible to make statements due to any other similar cause" under Article 314 of

The court below rejected the assertion that each of the above documents is admissible as evidence under Article 314 of the Criminal Procedure Act on the ground that it is not permitted for Defendant 1 and Defendant 2 to interpret that the case where Defendant 1 and Defendant 2 exercised the right to refuse to make a statement against the prosecutor’s question asked for the authenticity of “documents found in Defendant 3’s computer,” Defendant 2’s “documents attached to Defendant 2’s e-mail,” and “documents submitted by Nonparty 2” constitutes “when a person who is required to make a statement on the preparation or trial date is unable to make a statement due to death, disease, foreign residence, unknown whereabouts, or any other similar cause” under Article 314 of the Criminal Procedure Act, on the ground that the right to refuse to make a statement is exercised. The court below’s aforementioned determination is just in accordance with the aforementioned legal principles, and there is no error of law by misapprehending

C. Existence of admissibility pursuant to Article 315 subparag. 2 of the Criminal Procedure Act

1) In the case of documents, etc. with continuous and mechanical records, regardless of whether the facts constituting an offense, such as a trade book, log book, medical log, or other similar cash delivery, the admissibility of evidence is recognized as a matter of course by Article 315 subparag. 2 of the Criminal Procedure Act (see Supreme Court en banc Decision 94Do2865, Oct. 17, 1996, etc.).

2) The lower court determined that the said documents do not constitute “other ordinary documents prepared for business purpose” under Article 315 subparag. 2 of the Criminal Procedure Act on the grounds that there is no clear evidence to acknowledge that the documents “documents from Nonparty 1’s USB” and “documents submitted by Nonparty 2” were prepared in the course of performing the given duties.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, first of all, the part of the judgment of the court below that “documents from Nonparty 1’s USB,” excluding the part on which election campaigners actually carried out election campaign, and “documents submitted by Nonparty 2” does not constitute “other documents prepared for business purpose” under Article 315 subparag. 2 of the Criminal Procedure Act, is just and acceptable, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to admissibility of evidence

However, the part regarding “documents from Nonparty 1’s USB,” indicating whether election campaigners actually carried out election campaign, is based on the reading book prepared by Defendant 1’s regular, continuous and mechanical confirmation as to whether election campaigners actually carried out their duties to recruit and manage election campaign workers. As such, the reading book constitutes “other ordinary documents prepared for business purposes” under Article 315 subparag. 2 of the Criminal Procedure Act, and the part regarding “documents from Nonparty 1’s USB” indicating whether election campaigners actually carried out election campaign is also deemed to constitute “other ordinary documents prepared for business purposes” under Article 315 subparag. 2 of the Criminal Procedure Act. Thus, it is acceptable that the lower court readily concluded that the above marking portion does not constitute “other ordinary documents prepared for business purposes” under Article 315 subparag. 2 of the Criminal Procedure Act, solely on the grounds stated in its reasoning.

However, in light of the reasoning of the judgment of the court below and the first instance court, and the records, even if the admissibility of the above part of the facts charged is acknowledged, insofar as there is insufficient evidence to support the fact that the Defendants promised to pay actual expenses and allowances to persons exceeding the registered number of election campaigners, or actually paid them, the court below’s conclusion that this part of the facts charged cannot be deemed as having been proven beyond the reasonable doubt of the judge is justifiable, and thus, the court below’s erroneous judgment did not adversely affect the conclusion of the judgment. Accordingly, all of the grounds for appeal

D. Existence of admissibility as evidence of non-statement

Even if a document recording a statement becomes hearsay evidence when the authenticity of its contents is used as direct evidence against a crime, it does not necessarily become hearsay evidence when it is used as circumstantial evidence for an indirect fact unrelated to the authenticity of the statement (see Supreme Court Decision 9Do1252, Feb. 25, 200, etc.).

The lower court determined that the hearsay rule applies to “Defendant 2’s e-mail attachment document” and “documents submitted by Nonparty 2” as long as the existence of the documents does not directly constitute evidence of the facts charged, but rather where the authenticity of the contents of the documents is at issue.

Examining the reasoning of the judgment below in light of the above legal principles and the records, the phrase “Defendant 2’s e-mail attachment document” and “documents submitted by Nonparty 2” should be considered hearsay evidence to the extent that they are used as direct evidence for the authenticity of the contents recorded therein. However, when used as evidence for Defendant 2 or Defendant 1’s possession or storage of documents containing such contents or storage media containing such documents, the hearsay rule is not applied and thus it can be admitted as hearsay evidence.

Therefore, the judgment of the court below on this part is nothing more than that of the fact that Defendant 1 or Defendant 2 possessed or kept a document containing the pertinent contents, and even if the admissibility of such a document is acknowledged, it is not sufficient to prove the facts charged. Thus, it cannot be said that there is an error of law such as misunderstanding of legal principles as to admissibility of evidence in the judgment of the court below.

2. As to the remaining grounds of appeal

The Prosecutor’s remainder of the grounds of appeal is without merit for the admission of evidence and fact-finding which belong to the full power of the fact-finding court and cannot be a legitimate ground of appeal. In addition, even if the reasoning of the judgment below is examined in light of the records, the court below’s maintenance of the judgment of the court of first instance which acquitted each of the facts charged is justified. In so doing, contrary to what is alleged in the grounds of appeal, there is no illegality to the extent that the court below exceeded

On the other hand, the prosecutor appealed against the guilty portion of the judgment of the court below, but there is no statement of grounds for objection in the petition of appeal or appellate brief.

3. Conclusion

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

Justices Kim Chang-suk (Presiding Justice)