In a case where Co-Defendant A consented to the examination of the protocol of interrogation of Co-Defendant A as evidence, but the Co-Defendant A admitted the establishment and arbitability in court, whether the admissibility of the criminal facts of Defendant B exists (affirmative)

The protocol of examination of co-defendant A in preparation of the prosecutor's protocol can be used as evidence of guilt against the criminal facts of the defendant Eul, even if the co-defendant A consented to the establishment and arbitability in the first instance court.

Article 312(1) of the Criminal Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

A and 2 others

Defendants

Attorneys B and 2 others

Seoul High Court Decision 91No1246 delivered on July 9, 1991

All appeals are dismissed.

The number of detention days after an appeal against the defendant C shall be included in the calculation of the original sentence.

1. Defendant A and his defense counsel’s grounds of appeal are examined together.

According to the timely evidence of the judgment of the court of first instance maintained by the court below, the court below's decision that recognized the criminal facts of this case against the defendant is just and there is no error of law by misunderstanding facts against the rules of evidence, such as the theory of lawsuit, and in light of the various circumstances that form the conditions for sentencing against the above defendant, it is difficult to view that the sentencing of the court below constitutes a case where there is a substantial reason to recognize that the sentencing of the court below is extremely unfair

2. Defendant D and his defense counsel’s grounds of appeal are also examined.

(1) According to the timely evidence of the judgment of the court of first instance maintained by the court below, the decision of the court below that recognized the criminal facts of this case against the defendant is just, and there is no error of law by mistake of facts due to the violation of the rules of evidence, such as the theory of lawsuit.

(2) According to the records of the first trial in the court of first instance, since the public defender of the above defendant appeared in the public trial and directly conducted the cross-examination on the above defendant on the first trial date, and participated in the examination of evidence and stated his opinion, there is no error of law such as the theory of lawsuit against the above defendant during the examination of evidence at the above trial date. In addition, it is evident that the above first trial record was prepared by legitimate trial procedure as mentioned above, and the protocol of examination of the defendant as to the defendant prepared by the public prosecutor recognizes the authenticity and voluntariness of the defendant, and the defendant consented to the examination records of the suspect against other defendants as prepared by the public prosecutor, examination records of the public prosecutor and the protocol of examination of evidence by the public prosecutor and the judicial police officer, investigation records, etc. prepared by the defendant as evidence

(3) In light of the various circumstances, which form the conditions for sentencing as indicated in the record, the lower court’s sentencing against the above Defendant cannot be deemed to constitute a case where there is a substantial reason to recognize that the sentencing of the said Defendant is extremely inappropriate. Ultimately, the arguments are groundless.

3. Defendant C and his defense counsel’s grounds of appeal are examined together.

(1) According to the evidence of the judgment of the court below, the court below's finding the criminal facts of this case against the above defendant is just and there is no error of law by misunderstanding the legal principles as to a violation of the rules of evidence or a joint principal offense.

(2) According to the records, it is evident that the trial records of the first instance court were prepared by legitimate trial proceedings among the evidence adopted for the recognition of each larceny in the judgment of the above defendant, and each protocol of interrogation of the defendant A and D, which was prepared by the prosecutor, is admitted in the first instance court, and even if the above defendants C consented to it as evidence, it can be used as evidence of guilt against the above defendant's criminal facts (refer to the party members 90Do2362 delivered on December 26, 1990). And even if the prosecutor's interrogation of the defendant C of the prosecutor's protocol, the above defendant's authenticity is recognized at the court below in light of the contents, form and statement of the protocol, the above defendant's academic background, career, and intelligence, etc., which are the contents and statement of the protocol, since there is no reason to suspect the voluntariness of the statement, and the credibility of each evidence is also recognized. Therefore, it is justified that the court below's conviction of the above evidence is also justified.

(3) In light of all the circumstances, which are the conditions for sentencing against the above defendant, the lower court’s sentencing against the above defendant cannot be deemed to constitute a case where there is a clear reason to acknowledge that the sentencing of the above defendant is too unreasonable. Ultimately, all of the arguments are groundless.

4. Therefore, all appeals are dismissed, and part of the detention days after the appeal against Defendant C is to be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)