[1] Whether evidence which had already been admissible in the first instance court is admissible as it is without need to re-examine evidence in the appellate court (affirmative), and the measures to be taken by the presiding judge in the appellate court

[2] The probative value of the protocol of trial

[1] Article 364 (3) of the Criminal Procedure Act, Article 156-5 (1) of the Regulation on Criminal Procedure / [2] Article 56 of the Criminal Procedure Act

[1] Supreme Court Decision 2004Do8313 Decided March 11, 2005, Supreme Court Decision 2009Do377 Decided April 9, 2009 / [2] Supreme Court Decision 96Do173 Decided April 9, 1996 (Gong196Sang, 1477), Supreme Court Decision 2002Do2134 Decided July 12, 2002 (Gong2002Ha, 2004), Supreme Court Decision 2017Do5122 Decided June 8, 2017

Defendant

Defendant

Suwon District Court Decision 2017No3234 decided May 14, 2018

The appeal is dismissed.

The grounds of appeal are examined.

Article 364(3) of the Criminal Procedure Act provides, “Evidence that could have been admitted as evidence in the first instance court may be admitted as evidence even in the appellate court.” Therefore, evidence that had already been admitted as evidence in the first instance court may also be the basis of the trial as it is and thus, in the appellate court, the admissibility of evidence may be maintained, and it is not necessary to re-examine the evidence (see, e.g., Supreme Court Decisions 2004Do8313, Mar. 11, 2005; 2009Do377, Apr. 9, 2009): Provided, That the presiding judge of the appellate court shall notify the summary of the relationship with evidence in the first instance and the result of examination of evidence prior to the commencement of the examination of evidence (Article 156-5(1) of the

In addition, unless there is an obvious clerical error in the contents of the trial record, the document recorded in the trial record as a litigation procedure on the court date shall be proved only with the protocol, and its probative value is not allowed to reflect materials other than the protocol (see Supreme Court Decisions 96Do173, Apr. 9, 1996; 2002Do2134, Jul. 12, 2002, etc.).

In the first instance trial record of the lower court, the presiding judge notified the gist of the relationship of evidence and the result of the examination of evidence of the first instance court after he notified the presiding judge of the examination of evidence, and notified the prosecutor that the result of the examination of evidence may request the examination of evidence necessary to protect the right after hearing the prosecutor's opinion, and stated "a defendant shall be given an opportunity to make a final statement of opinion." According to the above protocol of trial, the presiding judge of the lower court notified the relationship of evidence and the summary of the result of the examination of evidence of the first instance before the examination of evidence during the first instance trial date of the lower court, and concluded the pleadings after giving the defendant the opportunity to make a final statement. Unless there is no evidence to see that the above protocol of trial is an obvious clerical error, the lower court does not have any violation of law in litigation procedures

According to Article 383 subparag. 4 of the Criminal Procedure Act, only cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been pronounced may be appealed on the ground that the judgment of the court below had affected the conclusion of the judgment. Therefore, in the instant case where a more minor fine has been imposed against the defendant, the ground of appeal disputing a judgment on the choice of evidence and probative value of the court of fact-finding, which belongs to the free judgment of the

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)