The appeal is dismissed.

The grounds of appeal are examined.

1. Where a statute relating to a trial in a case where a new trial has commenced, the criteria for such interpretation shall not be at the time of the decision subject to new trial, but at the time of the decision

(1) In cases where there are circumstances to suspect the voluntariness of testimony and evidence on the record, the court shall ex officio investigate the voluntariness, and in cases where the prosecutor fails to prove his/her intent to remove the question about the voluntariness, the admissibility of evidence is denied (see, e.g., Supreme Court Decision 2004Do7900, Nov. 23, 2006). In cases where the investigative agency prior to the prosecutor makes a statement without voluntariness due to the cruel act such as an adviser at the investigative agency prior to the prosecutor’s investigation, and thereafter made a statement with the same contents while voluntariness is continuously conducted at the investigation stage after the prosecutor’s investigation stage, even if there was no coercion by an adviser, etc. at the investigation stage before the prosecutor’s investigation stage, it shall be deemed that the statement before the prosecutor is also a statement without voluntariness.

(2) According to the record, the lower court found the Defendant to have been illegally detained without having issued a detention warrant near the Dongdaemun Police Station for about 36 days from August 31, 1978 to October 5, 1978, and found the Defendant to have been illegally detained by the investigators of the Dongdaemun Police Station. The circumstance that the investigator did not sleep the Defendant during the detention period, or was frighting the Defendant’s sexual organ, etc., even though the witness, who was the witness of the instant case, was in the detention room for a long time from September 29, 1978 to September 29, 1978, the lower court found that the Defendant and the police investigators were in custody without having issued the detention warrant for about 36 days from August 31, 1978 to September 29, 1978.