Defendant

Prosecutor

For Happy

Attorneys Lee Sung-won et al.

Seoul District Court Western District Court Decision 2003Gohap18 Delivered on June 19, 2003

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. As to the part of the defendant's statement in the investigation report prepared by the U.S. military criminal investigation team (hereinafter "CID") in the investigation report prepared by Non-Indicted 1

During three times from February 4, 2002 to February 6, 2002, the Defendant prepared a self-written statement of confessioning the facts charged in the instant case at a hotel located in the U.S. Huntington City (name omitted) in the form of an interview conducted by Nonindicted 2 and Nonindicted 3, who is the head of the Republic of Korea of the said Nonindicted Party 1 and the U.S. Federal Investigation Bureau (hereinafter referred to as the “FBI”), the head of the said branch office of Nonindicted Party 2 and the U.S. Federal Investigation Bureau (hereinafter referred to as the “FBI”), and Nonindicted 1 arranged the contents of the confession made by the Defendant in the form of a question and answer, and then received the Defendant’s signature and seal.

In the U.S. criminal procedure, in a case where a prosecutor does not examine a suspect, so if a judicial police officer wants to make a confession of a suspect, a judicial police officer is present in the court and give testimony to the above testimony. On the other hand, Nonindicted 1 is not a judicial police officer of the Republic of Korea, and the defendant was not a suspect at the time of the preparation of the above investigation report. Considering these points, it is reasonable to determine that the part of the statement of the defendant in the above investigation report constitutes the proviso of Article 313(1) of the Criminal Procedure Act. In light of these, it is reasonable to determine that the part of the statement of the defendant in the above investigation report constitutes the proviso of Article 313(1) of the Criminal Procedure Act. Since Nonindicted 1, the author, was present in the court below and the statement of the defendant was made in a particularly reliable state, it is admissible as evidence in the above part. Nevertheless, by simply considering the status of Nonindicted 1 as a judicial police

B. As to the statement prepared by the Defendant

The court below held that the written statement prepared by the defendant also falls under Article 312 (2) of the Criminal Procedure Act and the defendant denies its content, and thus, it is unfair that such written statement is made under the premise that the non-indicted 1, etc. is an investigative agency other than the prosecutor as seen earlier. Rather, the above written statement falls under the proviso of Article 313 (1) of the Criminal Procedure Act and is admissible as evidence since it proves the authenticity of the written statement as well as its unique condition at the time

C. Each legal statement of the witness Nonindicted 2 and Nonindicted 1

The court below, on the same ground as above, has no admissibility of the above witness's statement, but considering the fact that the above witness is not in the position of judicial police officer, the above statement constitutes Article 316 (1) of the Criminal Procedure Act and is made under a special condition, and thus, admissible as evidence.

D. Statement on Nonindicted 2’s written statement in the prosecutor’s preparation

The above written statement is a written statement prepared by the prosecutor of the reference witness and its admissibility should be determined by the main sentence of Article 312(1) of the Criminal Procedure Act. However, as long as Nonindicted 2 admitted the authenticity in the court, the court below held that it is inadmissible on the same ground as above, and the court below erred in misconception of facts by violating the rules

E. The prosecutor submits the criminal extradition protocol to the defendant prepared by the U.S. court as evidence in the trial, and the court of appeals shall consider this and make a new decision.

2. Determination on the grounds for appeal

A. As to the facts charged in the instant case, the Defendant, other than the confessions after being investigated by Nonindicted Party 1, etc. in the U.S., stated that the Defendant did not have assaulted the victim, but did not take any action against the victim at all to the court of the trial, and that the Defendant did not take any other action against the victim under the influence of alcohol.

B. The most essential point out of the grounds for appeal by the prosecutor is whether confessions made by Nonindicted 1, 2, and 3, who are the U.S. FBI or CID investigators, in the U.S., are effective under the evidence law in the Republic of Korea. As seen earlier, as seen earlier by the prosecutor, the prosecutor has admissibility of evidence of the legal testimony that the police officer led to confessions of the defendant due to the special criminal characteristics of the criminal law that the police officer other than the prosecutor examines the defendant, and Nonindicted 1, etc. are not the senior judicial police officer of the Republic of Korea, and the defendant was not the suspect at the time of the preparation of the above investigation report, and thus, the investigation report, written statement, etc. which the defendant led to confessions and heards before the defendant do not constitute an examination protocol prepared by the

(1) According to the evidence duly admitted by the court below and the documents, “Non-Indicted Party 4,” which were prepared by the Prosecutor of the United States of America, regarding the case at which the public prosecutor of the Republic of Korea had the authority to lawfully investigate, and Non-Indicted Party 1, the police officer of the Republic of Korea (Seoul Yongsan Police Station) after the incident occurred on March 17, 2001, is a citizen of the United States, and there is a possibility that the defendant would be a military person, and the police officer of the Republic of Korea has the authority to investigate the case from May 201 to the United States. The police officer of the Republic of Korea allowed the departure of the defendant from the Republic of Korea on the grounds that the defendant did not find any suspicion of the defendant, and that the defendant had the authority to investigate the case at the time, and that there was a contradiction between Non-Indicted Party 1 and Non-Indicted Party 2 and the defendant's last day on which Non-Indicted Party 1 had his authority to investigate the case at the bar of the United States.

Meanwhile, Article 312(2) of the Criminal Procedure Act explicitly provides that the subject of the protocol of interrogation of a suspect is "an investigative agency other than a public prosecutor". The term "an investigative agency other than a public prosecutor" means a general judicial police officer or a military investigative agency. In Supreme Court Decision 97Do1351 Decided July 25, 197, the Supreme Court does not necessarily refer to the protocol or documents prepared by the competent investigative agency of the Republic of Korea under Article 312 of the Criminal Procedure Act or the documents stipulated in Article 313 of the same Act, and if the protocol or documents prepared by the "foreign competent investigative agency" satisfies all the requirements stipulated in Article 314 of the same Act, it shall be deemed as evidence of guilt. Since questions about victims and accomplices prepared by the main prosecutor of the U.S., and the statement or document prepared by a person nominated by the court of the United States in accordance with a request for cooperation in criminal justice by the court of the Republic of Korea, it shall not be deemed that the statement or document is admissible under Article 315(3) of the Criminal Procedure Act.

According to the clear provision of Article 312(2) of the Criminal Procedure Act and the purport of the above Supreme Court ruling, only Article 312(1) of the Criminal Procedure Act is applicable to a protocol prepared by a foreign competent investigative agency, which falls under Article 312 or 313 of the same Act, and only Article 312(1) of the same Act is applicable to a protocol of interrogation prepared by a U.S. investigative agency (U.S. prosecutor) of the Republic of Korea who is in conformity with the inspection status of the Republic of Korea. Article 312(2) of the same Act applies to a protocol of interrogation of the accused prepared by a judicial police officer of the Republic of Korea or by FBI or CID who is in the status of a military investigative agency, and only Article 313(1) of the same Act is not applicable

(2) The duty of delivery under Article 1 of the Extradition Treaty between the Government of the Republic of Korea and the Government of the United States of America, which was concluded on June 9, 1998 and entered into force on December 20, 1999, provides that "The Contracting Parties agree to deliver one who is several times for indictment, trial, or imposition or enforcement of sentence on an extraditable offence pursuant to the provisions of this Treaty, and Article 8 subparagraph 3 of the same Article provides that "When the extradition is requested, the following persons shall be subject to the authority to issue the warrant of extradition:

On the other hand, Article 1.1 of the Treaty between the Republic of Korea and the United States of America, which entered into on November 23, 1993 and entered into force on May 23, 1997, provides that "Any request for assistance concerning the identity of a person subject to technical assistance by the State shall be made in accordance with the law of the State's request for assistance, except in cases where such request is made in accordance with the provisions of the Treaty." This Section 1 of the Treaty provides that "Any request for assistance shall be made in the name of the State's request for assistance concerning the acquisition of the information, in accordance with the law of the State's request for assistance, or in cases where such information is made in accordance with the law of the State's request for assistance." This Section 1 of the Treaty provides that "Any request for assistance shall be made in accordance with the provisions of the Treaty." Any request for assistance shall be made in the form of a document, record and evidence available to the State's request for assistance or in the manner of search or seizure of other documents."

As seen earlier, the extradition treaty and the extradition treaty should be attached to the extradition request form providing information that provides a reasonable ground to believe that the claimed person committed the crime if one of the Contracting Parties requests the extradition of the person suspected of having committed the crime. This is premised on the provision of the information obtained in its territory by the investigating agency of the Requesting State or the judicial agency of the Requesting State. If the Requesting State decides to extradition the criminal based on such information, it is sufficient for the Requesting State to proceed with the prosecution and trial under its criminal justice system after the extradition of the criminal, and it is not possible for the Requesting State to grant admissibility of evidence by unreasonably interpreting the data submitted by the other Party while giving up the unique judicial system of the Contracting State.

Furthermore, it is difficult to accept the prosecutor's assertion that if the suspect who committed the crime subject to extradition runs away to the United States, the investigation of the suspect could not be conducted in the U.S. investigative agency, and even if the suspect confessions to the U.S. investigative agency, it would not be punished because of lack of admissibility, it would lead to an unreasonable result. The prosecutor's assertion that the cooperation in relation to the prevention of the crime, investigation, prosecution, and criminal proceedings would be provided, and except where the implementation of the cooperation is prohibited by the law of the requested state, it would be possible to obtain evidence consistent with the Korean judicial system in accordance with the provisions of the Criminal Procedure Act that the specified implementation method should be complied with, except in the case where the implementation of the cooperation is prohibited by the law of the requested state. Furthermore, the above argument by the prosecutor is not acceptable in that the protocol prepared by the competent investigative agency of the foreign country under Articles 312 through 313 of the Criminal Procedure Act is a protocol under the provisions of the Criminal Procedure Act.

C. Thus, in the United States, the investigation report in which Nonindicted 1 made the confession of the defendant is actually prepared by the investigative agency other than the prosecutor under Article 312(2) of the Criminal Procedure Act, and the written statement prepared by the defendant at the time is also applied to Article 312(2) of the same Act. Thus, since the defendant denies its contents in the court of original instance, all of the documents are inadmissible (not only in the above investigators but also in the above investigators’ right to appoint counsel and the notice of implied right at the time of interview by the defendant). Furthermore, each statement made by Nonindicted 2 and Nonindicted 1 in the court of original instance and the written statement made by Nonindicted 2 in the court of original instance concerning the confession of the defendant who was heard by the person who is in the position of judicial police officer is also related to the circumstance concerning the confession of the defendant, and all of these statements are inadmissible (see Supreme Court Decision 94Do287 delivered on March 24,

In addition, the entry of a copy of the extradition trial protocol submitted by the prosecutor is ultimately denying the facts charged in this case, and the remaining evidence submitted by the prosecutor is inadmissible, or it is insufficient to recognize the facts charged in this case.

(d) Home affairs, even if the confession made by the defendant in the United States is admissible, the confession of the defendant is difficult to believe for the following reasons, and there are no supporting evidence.

(1) 피고인과 피해자가 2001. 3. 18. 투숙하였던 서울 (상세 주소 생략) 소재 (상호 생략) 여관의 주인 공소외 5는 일관되게, 같은 날 03:30경부터 04:00경까지 피해자가 묵고 있던 위 여관 103호에서 황토색 랜드로바 신발을 신고 베이지 색 계통의 바지를 입고 있던 백인 남자가 바지 오른쪽 발목부터 무릎 사이에 피가 묻은 채 나온 것을 보았다고 진술하고 있다. 또한, 피고인 일행으로서 같은 날 위 (상호 생략) 여관 102호에 묵었던 공소외 6과 공소외 7은, 같은 날 04:00경 무렵 잠을 자다가 밖에서 “But, you are now here(하지만 넌 여기 있잖아)"라는 화가 난 남자의 미국 액센트 목소리를 들은 다음 작은 목소리의 비명소리와 바닥을 구르는 것 같은 ”쿵-쿵“ 소리가 났고, 그 다음 ”Let`s go(가자)"라는 소리를 들었다고 진술하고 있다.

(2) Of the blood movements collected from the victim’s (trade name omitted) room 103 room, it was collected from the inside 103 entrance. As a result of the genetic analysis, it was revealed that both male and the remainder of the plan and the blood traces collected from the victim’s clothes are victims. The blood type of the Defendant and the victim’s blood type, both of which were silentd in the same room as the victim, was zero, but a large number of blood type A was collected from the surrounding floor and body of the victim at the time of the instant site, and the body of the victim at the time of the instant site, and the hair collected from the head (the request for appraisal by the Director of the National Institute of Scientific Investigation and Investigation, 379 of the Investigation Records).

(3) The Defendant’s key is 170cm, the body weight is 91km, and the size of its length is 260cm. The body body of the victim at the site of the instant case was in the shape of a launching country where the skin was asked. However, the police reported that the new launch size is presumed to be 275cm as an external product of the trademark, not a domestic product, in light of the shape of the origin state, and that the new launch size is presumed to be 275cm (the investigation record 3 844-845 pages).

(4) At the site of the instant case (trade name omitted) the victim was faced with a considerable amount of 103 floor and clothes. In particular, at the time of being coming from toilets, the victim was detained in the lower side of the wall that appears, and the victim’s face and body were considerably high, and the victim’s pressure appears to have died due to pressure. If the defendant was dead due to the Defendant’s appearance, such as the Defendant’s confession, then the police who was in charge of the initial investigation does not have any material as to this point, even if the Defendant’s personal attack or breath, etc. or returned to 104, the police who was in charge of the initial investigation, despite the nature of satching (see, e.g., presumption that there was no such suspicion against the Defendant).

(5) The Defendant was examined with Nonindicted Party 1, etc. in the U.S. at the time of the instant case, and the Defendant and the victim were examined with Nonindicted Party 1, etc. on March 17, 2001. At the time of the instant case, when the Defendant and the victim were examined with the victim in the room room room room room room, he thought that the male and female were out of 103, or was able to commit the instant crime. However, at the time of the instant case, the Defendant committed the instant crime. However, at the first time on March 201, 201, the Defendant, as a male and female exchange student status in the University (title omitted) was first known to the victim as the student status before the instant case occurred, he did not accept that the Defendant and the victim had sexual intercoursed with the U.S. military and dancing with the Defendant, and that at the time of the instant crime, the Defendant and the victim had sexual intercoursed with the Defendant or sexual intercoursed with the Defendant.

(6) Furthermore, the contents of the confessions made by Nonindicted 1 and Nonindicted 2, etc. from the Defendant, which the Defendant was frightened with the victim due to her same-sex with the victim. In the process of inducing the victim from the toilet, the Defendant was killed by taking the victim immediately without going through the specific process of the Defendant’s actions from the victim to the time of his death. In other words, the contents of the confessions by the Defendant are relatively simple, and the motive and the process of the crime are limited to a relatively simple, and how the Defendant used the victim to assault the victim in any way, and how the Defendant was reported, and how the 103 entrance entrance was processed, and how the Defendant did not receive specific statements due to the confessions (No. 3 rights of investigation record No. 1355), and how the Defendant was unable to easily believe the confessions by the Defendant.

Ultimately, even if there are several contradictions in the defendant's statement, the defendant's confession is not reliable in light of the following: (a) the 103th room had been white male; (b) the 102nd room had the voice of white male; (c) the statement of the witness, which was revealed to be male at the scene of the crime, and the blood trace revealed to be male; (d) the body of the defendant was discovered above the above room and the body of the defendant; and (e) the size of the new appearance which appears to be the criminal was shown to be 275m different from the defendant, and (e) the third party, who is not the defendant, is likely to be a criminal.

3. Conclusion

In light of the above, the above evidence submitted by the prosecutor is inadmissible or weak so that the defendant committed the crime in this case. Thus, the facts charged in this case constitutes a case where there is no evidence to acknowledge it. Thus, the judgment of the court below that acquitted the defendant is proper and it does not find any error of law that affected the conclusion of the judgment by misunderstanding facts in violation of the rules of evidence.

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judge Jeon Jin-jin (Presiding Judge) Awards and decorationss for the best award;