[1] Probative capacity of a protocol of interrogation prepared by a judicial trainee as a prosecutor acting on behalf of others

[2] In a case where the defendant denies the contents of each protocol of interrogation of a suspect who is a judicial trainee prepared by the prosecutor as evidence of some facts charged and recognized the authenticity of establishment, the case holding that the court below's judgment which acquitted the defendant of this part of the charges on admissibility of evidence is erroneous in the misapprehension of legal principles as to admissibility of evidence

[1] Where a prosecutor acting as a judicial trainee prepares a protocol of interrogation of the defendant on behalf of the prosecutor on a case that does not fall under a trial by a collegiate panel under the Court Organization Act within the scope ordered by the Prosecutor General, such protocol of interrogation of the defendant satisfies the requirements of Article 312(1) of the Criminal Procedure Act, such protocol of interrogation of the defendant is admissible as well as the protocol of interrogation prepared by the prosecutor

[2] The case holding that the court below's judgment which rejected the admissibility of evidence of the above suspect interrogation protocol and acquitted the defendant of this part of the facts charged in case where the defendant denied the contents of each interrogation protocol of the defendant acting as a judicial trainee who submitted the evidence of some facts charged, but acknowledged the authenticity of its establishment, was erroneous in the misapprehension of legal principles as to admissibility of evidence on the date of trial of the defendant who was prosecuted as a blanket

[1] Article 312(1) of the Criminal Procedure Act, Article 32(1) and (3) of the former Public Prosecutor’s Office Act (Amended by Act No. 9815, Nov. 2, 2009) / [2] Article 312(1) and (3) of the Criminal Procedure Act, Article 32(1) and (3) of the former Public Prosecutor’s Office Act (Amended by Act No. 9815, Nov. 2, 2009); Article 329 of the Criminal Act; Article 5-4(1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010)

[1] [2] Supreme Court Decision 78Do49 delivered on February 28, 1978 (Gong1978, 10684) Supreme Court Decision 2004Do8840 Delivered on March 10, 2005

Defendant

Prosecutor

Attorney Jeong-hee

Suwon District Court Decision 2009No5602 decided January 4, 2010

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment of the court below and the judgment of the court of first instance maintained by the court below, the court below rejected the admissibility of each protocol of examination of the defendant as to a judicial trainee prepared by the court below on the date of trial, and judged that the remaining evidence alone rejected the admissibility of each protocol of examination of the defendant, who is a judicial trainee prepared by the court below on the date of trial, and rejected the admissibility of the evidence [the list of crimes] Nos. 1, 4, 5, and 8 as stated in the judgment of the court below [the list] 240,60 won in total for six times, such as cash No. 1, 4, and 8], and it is not sufficient to recognize that the crime of larceny was held as a single concurrent crime for the reason that it is not a prosecutor without qualification and a judicial trainee's status guaranteed under Article 312 (1) and (2) of the Criminal Procedure Act, and thus, it constitutes a crime of larceny [the crime of larceny] and each crime of larceny No. 78 days in the judgment of the court below.

2. However, the lower court’s determination is difficult to accept for the following reasons.

Article 32 (1) of the former Public Prosecutor's Office Act (amended by Act No. 9815 of Nov. 2, 2009) provides that the Prosecutor General may order judicial trainees to act on behalf of the prosecutor of the district public prosecutor's office or branch office for a specified period at the request of the Director of the Judicial Research and Training Institute, and Article 32 (3) of the same Act provides that no person acting on behalf of the prosecutor shall handle any case brought by collegiate panel under the Court Organization Act. Thus, in case where a prosecutor acting on behalf of the Prosecutor General prepares an interrogation protocol on behalf of the defendant on behalf of the defendant concerning a case that does not fall under a case brought by collegiate panel under the Court Organization Act within the scope ordered by the Prosecutor General, such interrogation protocol is admissible as in the interrogation protocol prepared by the public prosecutor of the district public prosecutor's office or branch

According to the records, the defendant denied the contents of each protocol of examination of a suspect on behalf of the defendant, who is a judicial trainee, submitted as evidence of each facts charged as set forth in Nos. 1, 4, 5, and 6 of the judgment of the court of first instance on the trial date of the court of first instance, and recognized the authenticity of establishment.

In light of the above legal principles, each protocol of interrogation of the defendant, who is a judicial trainee, is admissible as evidence even if the defendant denies the contents of the protocol on the first trial date of the court of first instance, so long as the authenticity of establishment is recognized.

Therefore, the court below's decision which rejected each protocol of interrogation of the defendant who is a judicial trainee as to each of the facts charged in the judgment of the court below as to Nos. 1, 4, 5, and 6, and judged that this part of the facts charged is not guilty on the ground that it is not recognized that the defendant has habituality of larceny with respect to each of the facts charged in the [crime List] Nos. 7 and 8 of the judgment of the court below which found the defendant guilty on the ground that it is not recognized that there is habituality of larceny. In so determining, the court below erred by misapprehending the legal principles as to the admissibility of evidence of protocol of interrogation of a protocol of interrogation of a judicial trainee as a judicial trainee

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)