Admissibility of evidence of the statement by a witness of the judicial police officer who consented to the evidence in the first instance court and reversed it in the second instance.

In the protocol of the first instance trial and the list of evidence that form part of the protocol, the statement that the accused or his defense counsel consented to the admissibility of evidence is stated, and the statement of witness by the judicial police officer who cannot be seen as having withdrawn or cancelled his/her intention before the examination of evidence is completed, the statement of witness in the preparation of the protocol of handling affairs by the judicial police officer who cannot be seen as having been genuine, shall not be admissible as evidence even if the accused consented to the admissibility of evidence or denied the crime.

Article 318(1) of the Criminal Procedure Act

Supreme Court Decision 88Do1628 delivered on November 8, 198 (Gong1988,1556) 89Do2366 delivered on February 13, 1990 (Gong1990,707) 90Do2525 delivered on January 11, 1991 (Gong1991,786)

Defendant

Prosecutor

Daejeon District Court Decision 91No289 delivered on February 26, 1993

The part of the judgment of the court below regarding the facts charged Nos. 1 and 3 is reversed, and that part of the case is remanded to the Daejeon District Court Panel Division.

The prosecutor's remaining appeals are dismissed.

The Prosecutor's grounds of appeal are examined.

1. As to the part of the indictment Nos. 1 and 3

According to the reasoning of the judgment below, the court below determined that although the defendant led to the confession of Articles 1 and 3 of the facts charged on the third trial date of the prosecution and the court of first instance, the evidence as stated in its reasoning, such as the Kim Jong-ho, the leather, the tea, the tea, the exhaustion, the tea, the tea, the tea, the tea, and the tea, etc. of the preparation of the judicial police's handling of affairs by the judicial police, are not admissible evidence supporting the confession of the defendant, and therefore,

However, according to the records, when examining the contents of the third trial records and the list of evidence that form part of the above protocol of the court of first instance, the defendant or defense counsel stated that he/she consented to the above evidence as evidence on the third trial date of the court of first instance, and it cannot be seen that he/she withdrawn or cancelled the above declaration of intention before the completion of the above evidence examination. If the above evidence is acknowledged as genuine, the above evidence is recognized as true, and even if the defendant consented to the admissibility of the above evidence as evidence or denied the crime of this case at the court of first instance, it shall not be deemed that the above evidence is inadmissible (see Supreme Court Decisions 88Do1628, Nov. 8, 198; 89Do2366, Feb. 13, 190; 90Do2525, Nov. 11, 1991).

Therefore, the court below did not examine and decide whether the defendant consented to the admissibility of the above evidence as evidence and whether the above evidence is recognized as true, and determined that the above evidence is inadmissible only for the reasons as stated in its holding. Since the court below erred by misapprehending the legal principles on Article 318 of the Criminal Procedure Act or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment, it is reasonable to point out this issue.

2. As to the facts charged under paragraph (2)

In light of the record, there is no evidence that the defendant or his defense counsel consented to the preparation of business affairs by the police officer and the written statement of the next police officer as evidence. Thus, there is no reason to criticize the judgment below that acquitted the defendant or his defense counsel on the facts charged by asserting that there is a different fact.

3. Therefore, the part of the judgment of the court below regarding Articles 1 and 3 of the facts charged shall be reversed and remanded, and the remainder of the appeal by the prosecutor shall be dismissed. It is so decided as per Disposition by the assent

Justices Cho Chang-tae (Presiding Justice)