In cases where the whereabouts of a witness is unknown, etc., the purport of recognizing the admissibility of the evidence of the statement or written statement made or prepared by the witness, and the degree of proof as to “the statement or written statement made under particularly reliable circumstances” (= extent of excluding reasonable room for deliberation)

In the event the whereabouts of the person making the original statement or the person making the statement (hereinafter referred to as the “person making the statement or the person making the statement or the person making the statement (hereinafter referred to as the “person making the statement”) is unknown, the admissibility of the statement or the written statement made by the person making the statement or the person making the statement is recognized. Article 312 or 313 of the Criminal Procedure Act recognizes the admissibility of evidence only when strict requirements such as guaranteeing the right of cross-examination of the defendant or his defense counsel regarding the written statement, etc. are met. As such, the Criminal Procedure Act recognizes exceptions to the basic principles, such as direct cross-examination, thereby allowing the admissibility of evidence without any opportunity to cross-examine the person making the statement or the person making the statement. In such a case, the “certification of whether the statement or the preparation was made in a particularly reliable

Articles 308, 312, 313, and 314 of the Criminal Procedure Act

Defendant

Prosecutor

Seoul Central District Court Decision 2013No1537 Decided October 4, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. The Criminal Procedure Act is based on the principle of due process stipulated in Article 12(1) of the Constitution, and the principle of trial-oriented, oral pleading, and direct examination in order to realize the right to a fair trial guaranteed by Article 27 of the Constitution. Accordingly, the Criminal Procedure Act is based on the principle of trial-oriented, oral hearing, and direct examination. Accordingly, a statement that is not investigated and made before a judge and the defendant is not given an opportunity to attack and defend against him/her, in principle, cannot be admitted as evidence (see, e.g., Supreme Court en banc Decision 9Do1108, Jun. 15, 200). In light of the foregoing, recognition of admissibility of written evidence, such as a protocol, etc., prepared by an investigative agency under the Criminal Procedure Act is exceptionally permitted in consideration of the ideology of discovery of substantial truth and a request for the economy of litigation, so the provisions on the requirements for recognition of admissibility of evidence should be strictly interpreted and applied (see Supreme Court Decision 2011Do8325, Mar. 14, 2013).

In particular, the Criminal Procedure Act recognizes the admissibility of a protocol or a statement prepared by a public prosecutor or a judicial police officer who is not the defendant, which contains a statement of a person other than the defendant, in the presence of a judge, only when the person making the original statement or the person preparing the statement (hereinafter referred to as "References") admits the authenticity of the statement or the statement in the presence of a judge or when such strict requirements are met, such as where the defendant or his defense counsel is given an opportunity to cross-examine the witness (Article 312(4) and (5)). In cases where the references are unable to appear at a preparatory hearing or the court on the grounds of death, disease, unknown whereabouts, etc., and where it is proved that the statement, etc. made in an investigative agency was not made in the presence of a judge, even if they were not directly made in the presence of a judge and they can be admitted as evidence even if they were not made in the presence of a witness (Article 314). Ultimately, the Criminal Procedure Act recognizes the admissibility of a statement or a statement made by a witness to the extent that they meet strict requirements such as evidence.

2. According to the prosecutor’s argument in the grounds of appeal, although two persons’ statements were made in the process of examining the non-indicted person as alleged in the grounds of appeal, they were in conflict with the defendant in the interrogation process of the prosecutor, the defendant first filed a 112 report with the non-indicted person first, and immediately received the first investigation by the police. Even if each statement was made by the non-indicted person, the defendant’s statement is the purport that the non-indicted person first filed a request for payment after going through the Internet hosting, and then reported it to the police. On the other hand, the non-indicted’s statement was made online hosting with the content of the act in advance and the consideration for other acts, and the defendant argued that the non-indicted person demanded payment of the consideration for similar acts as stated in the facts charged. Furthermore, it is difficult to view that two persons’ statements were not in conflict with the non-indicted person’s own testimony in the investigative agency’s CD (No. 1) which was submitted by the defendant to the court below to the effect that it is evident that the non-indicted person’s statement was false and reliable, in light of evidence 31 of evidence.

In light of the above legal principles, the court below's rejection of admissibility of evidence on the ground that it is difficult for the non-indicted to prove that the statement was made under particularly reliable circumstances with respect to the non-indicted's statement and each protocol of examination of suspect as to it. Contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to arbitrary interpretation of Article 314 of the Criminal Procedure Act or confusion between the issue of admissibility and probative value, which affected the

3. 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)