[1] Admissibility of evidence of a suspect interrogation protocol prepared by an investigative agency other than a prosecutor for another suspect in relation to the defendant and accomplices, and whether Article 314 of the Criminal Procedure Act is applied in this case (negative)

[2] The procedure for the examination of evidence in a case where the evidence submitted by the defendant as evidence of innocence is used as evidence of conviction

[3] The case reversing the judgment of the court below which found the defendant guilty on the ground of a violation of the rules of evidence, where Gap did not have an opportunity to express his opinion and to defend himself as to the "report of unknown whereabouts of a foreigner" submitted as a material of innocence, and where Gap did not have an opportunity to express his opinion and to defend himself as evidence, as to the facts charged that Gap, who did not actually married, conspired with a disguised marriage broker B and Chinese nationality, submitted a false marriage report between Gap and Byung, thereby submitting a false marriage report between Gap and Byung

[1] Articles 312(3) and 314 of the Criminal Procedure Act / [2] Articles 307, 318, and 325 of the Criminal Procedure Act / [3] Articles 307, 318, and 325 of the Criminal Procedure Act; Articles 228 and 229 of the Criminal Act

[1] Supreme Court en banc Decision 2003Do7185 Decided July 15, 2004 (Gong2004Ha, 1393), Supreme Court Decision 2008Do5189 Decided September 25, 2008 / [2] Supreme Court Decision 87Do966 Decided October 10, 198 (Gong1989, 1703)

Defendant

Defendant

Attorney Na-ju

Jeonju District Court Decision 2008No1110 Decided November 7, 2008

The judgment of the court below is reversed, and the case is remanded to Jeonju District Court Panel Division.

We examine the grounds of appeal.

1. The summary of the facts charged in this case against the defendant is as follows: although the defendant did not have any actual marital relationship with the non-indicted 1 of Chinese nationality, in collusion with the non-indicted 2 and the above non-indicted 1, the defendant, and the non-indicted 1, on August 28, 2002, submitted a false marriage registration statement to the public official who was married by the defendant and the non-indicted 1, thereby having the above public official record the false facts in the family register, and had the above public official keep the above family register and exercise it. The court below affirmed the facts as stated in its reasoning with evidence adopted by the court of first instance, and maintained the judgment of the court of first instance which convicted the defendant of the facts charged in this case on the ground

2. However, we cannot agree with the above determination by the court below for the following reasons.

A. Article 312(3) of the Criminal Procedure Act applies not only to the case where the interrogation protocol of the accused prepared by investigation agency other than the public prosecutor is used as evidence of guilt against the accused or the accused prepared by investigation agency other than the public prosecutor, but also to the case where the interrogation protocol of the accused or the accused prepared by investigation agency other than the public prosecutor is adopted as evidence of guilt against the accused or the accused. The interrogation protocol of the suspect prepared by investigation agency other than the public prosecutor for the accused or the accomplice in relation with the accused or the accomplice in relation with the accused is admitted as evidence by the suspect's court statement, even if the authenticity is acknowledged by the suspect's statement, if the defendant denies the contents of the protocol on the trial date, and as a result, Article 314 of the Criminal Procedure Act, which exceptionally recognizes the admissibility of evidence is not applicable to the interrogation protocol of the accused as an exception when it is impossible to make a statement in the court due to reasons such as death, etc. (see Supreme Court en banc Decision 2003Do7185, Jul. 15, 2004).

According to the records, since the defendant consistently denied the contents of the above protocol without the consent of the police interrogation protocol against the non-indicted 1 who is co-offenders as evidence, in light of the above legal principles, the above protocol is inadmissible in accordance with Article 312 (3) of the Criminal Procedure Act, and further, it cannot be admitted as evidence by applying Article 314 of the Criminal Procedure Act. According to the reasoning of the judgment below and the records, the court below acknowledged the facts as stated in its decision by the above protocol adopted by the court of first instance as evidence by applying Article 314 of the Criminal Procedure Act. Thus, the court below erred by misapprehending the legal principles as to Articles 312 (3) and 314 of the Criminal Procedure Act.

B. In addition, even though the defendant or his defense counsel submitted a document concerning innocence and supporting the defendant guilty, the court shall not use the document as evidence for conviction unless the other party's assertion (as to the other party's consent), unless the other party's assertion (as to the document's authenticity) is made, it shall not be used as evidence for conviction (see Supreme Court Decision 87Do966 delivered on October 10, 1989). According to the reasoning of the judgment of the court below and the records, it can be known that the defendant's defense counsel submitted the document concerning "the foreigner's unknown or unknown whereabouts" prepared by the defendant to the court of first instance and that the court below confirmed the facts as stated in the judgment of the court below which confirmed the facts charged in this case by the above report, since the court of first instance or the court below cannot find any circumstance that the defendant provided the defendant or his defense counsel's opportunity to express his opinion and defend himself with respect to the above report. Thus, the above report's measures as evidence for conviction are also unlawful.

C. Furthermore, the facts charged in a criminal trial must be proven by the prosecutor, and the judge should be convicted with evidence having probative value that leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is suspicion of guilt against the defendant, it is inevitable to determine the defendant's interest (see Supreme Court Decision 2008Do6943, Oct. 9, 2008, etc.). Thus, the remaining evidence excluding the interrogation protocol of Nonindicted 1, who cannot be used as evidence and the report of foreigner's unknown whereabouts and departure, and the remaining circumstances cited by the court below are presented by the court below that the facts charged in the case where the defendant reported a false marriage without the intention of marriage, cannot be deemed as proved by evidence with probative value that leads to the conviction that the facts charged are true beyond a reasonable doubt.

D. Nevertheless, maintaining the judgment of the court of first instance which found the defendant guilty of the facts charged of this case is erroneous in the misapprehension of legal principles as to admissibility of evidence and in violation of the rules of evidence, which affected the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)