[1] In a case where admissibility of an interrogation protocol of an accomplice who is not a co-defendant in preparing a public prosecutor, and the formal authenticity of such protocol is acknowledged, whether actual authenticity is presumed (affirmative)

[2] Requirements to acknowledge admissibility of a protocol in which a prosecutor or a senior judicial police officer’s statement was written by a person other than a suspect

[3] The meaning of "the leader" under Article 4 (1) 1 of the Punishment of Violences, etc. Act, and whether a person who directs organized activities in the hinterland of or through the intermediate executives of the criminal organization constitutes the above "the leader" (affirmative)

[1] An interrogation protocol of an accomplice other than a co-defendant prepared by the public prosecutor may be admitted as evidence when the authenticity of its formation is acknowledged by the statement made by the person making the original statement at a preparatory hearing or during a public trial pursuant to Article 312(1) of the Criminal Procedure Act. The authenticity of its establishment means not only the formal authenticity of the protocol, such as seal, signature and seal, but also the actual authenticity that the protocol is recorded as the content of the statement made by the person making the original statement. However, the interrogation protocol of a suspect who is recognized as formal authenticity is presumed to

[2] A protocol in which a public prosecutor or a judicial police officer made a statement of a person other than a suspect is admitted to be authentic by a statement made by the person making the original statement at a preparatory hearing or at a public trial, and where the original person makes the statement at a preparatory hearing or at a public trial, and where it is recognized that the fact that the person making the original statement affixed a seal, signature, or seal on the trial date and the content of the protocol was made as stated, it shall be admissible as a document acknowledged to be authentic by a statement made by the original person on the trial date

[3] The term "the leader" as referred to in Article 4 (1) 1 of the Punishment of Violences, etc. Act refers to a person who directs and leads the activities of an organization as the head of the organization's head, and even if he does not directly take charge of the general guidance of the members of the organization in front, the leader refers to the person who directs all organizational activities in the hinterland, or directs and supervises the horse's staff through the intermediary officer who directs and leads the horse's officers in the hinterland, and the leader refers to the leader mentioned above. The member of the end group of the crime organization can not be aware of who actually takes the command and command from the middle officer, and even if he knows two items, he/she may not easily persuade the organization's common interest.

[1] Article 312 (1) of the Criminal Procedure Act / [2] Article 312 of the Criminal Procedure Act / [3] Article 4 (1) 1 of the Punishment of Violences, etc. Act

[1] Supreme Court Decision 84Do748 delivered on June 26, 198 (Gong1984, 1378) 92Do769 delivered on June 23, 1992 (Gong1992, 2318) 95Do4 delivered on May 12, 1995 (Gong1995Sang, 2157), Supreme Court Decision 98Do980 delivered on June 9, 1998 (Gong1998Ha, 1932, 19399) 99Do1860 delivered on July 23, 199 (Gong1999Ha, 189, 1928) / [2] Supreme Court Decision 99Do1869 delivered on July 29, 209 (Gong2999Do1828 delivered on July 23, 199) / [3] Supreme Court Decision 85Do1985 delivered on May 25, 19697

Defendant

Defendant

Attorney transferred-type et al.

Daejeon High Court Decision 2000No608 delivered on February 9, 2001

The appeal is dismissed. 130 days out of the number of detention days after the appeal shall be included in the original sentence.

We examine the grounds of appeal.

1. On the first ground for appeal

A. An interrogation protocol of an accomplice other than a co-defendant prepared by the public prosecutor may be admitted as evidence when the authenticity of its formation is acknowledged by the statement made by the person making the original statement at a preparatory hearing or during a public trial pursuant to Article 312(1) of the Criminal Procedure Act. The authenticity of its establishment means not only the formal authenticity of the protocol, such as seal, signature and seal, but also the actual authenticity that the protocol is recorded as the content of the statement made by the person making the original statement, and the interrogation protocol where formal authenticity is recognized is presumed as recorded as the content of the statement made by the person making the original statement unless there are special circumstances (see, e.g., Supreme Court Decision 9Do1860,

According to the records, the defendant in this case did not agree to the admission of each suspect interrogation protocol prepared by the prosecutor as evidence against other accomplices 1, 2, 3, 45, and 6. However, these interrogation records are deemed to have affixed seals, signatures, and seals after inspecting the contents of the interrogation protocol. Further, the accomplice 3 and 5 appeared as witness on the date of the first instance trial and confirmed that the contents of the interrogation protocol were stated as the statement, and their signature, seal, and seal are affixed, and the formal authenticity and substantial authenticity are acknowledged (86,95 pages), 1, 2, 4, and 6 stated in each interrogation protocol as co-offender, signature, seal, and seal are affixed (86,95 pages of the trial record), and they admitted only the formal authenticity and substantial authenticity are denied (13, 134, 150, 160, 161 of the trial record). However, it is acknowledged that all of these statements made by the prosecutor's protocol of suspect interrogation are not admissible as evidence of each suspect interrogation protocol made as evidence.

In the same purport, the court below's adoption of the suspect interrogation protocol as evidence is just, and there is no error in the misapprehension of legal principles as to admissibility of the suspect interrogation protocol as to co-defendants other than co-defendants prepared

B. A protocol in which a public prosecutor or a judicial police officer recorded a statement of a person other than a suspect is admissible as evidence, if it is acknowledged that the protocol is authentic by a statement made by the person making the original statement at a preparatory hearing or at a public trial. If the person making the original statement is recognized to have been signed and sealed on the trial date and the contents of the protocol are as stated in his/her statement, the protocol shall be admissible as a document acknowledged to have been authentic by a statement made by the person making the original statement on the trial date. The protocol shall be admissible as a document acknowledged to have been authentic by a statement made by the person making the original statement on the trial date, and its admissibility is not denied (see, e.g., Supreme Court Decisions 85Do1843, Oct. 8, 1985; 96Do3456, Feb. 28, 1997; 9Do128, Jun. 27, 200).

However, according to the records, each protocol of statement on the correspondence prepared by the prosecutor does not consent to the defendant as evidence, and the person making the original statement is merely a finite, reading, signing, or sealing when being investigated by the prosecutor at the time of the investigation by the prosecutor at the time of the investigation by the prosecutor at the time of the first instance trial in relation to the instant case, and there is no trace of the investigation procedure such as allowing the reading of the contents of the protocol. Thus, it is insufficient to recognize the authenticity of the protocol alone. Thus, each protocol of statement on the correspondence prepared by the prosecutor cannot be admitted as evidence.

Nevertheless, the court below's adoption of each written statement of Tae-kin as evidence is erroneous, but it is sufficient to recognize the crime of this case only with the remaining evidence except this as shown below. Thus, it does not affect the conclusion of the judgment.

C. Furthermore, in light of the records, the evidence employed by the court below and the court of first instance (excluding the statement of Thai-man who is judged to have no admissibility of evidence) maintained by the court below, the defendant constitutes a crime organization with the aim of interfering with various rights by using violence against the public and entertainment businesses, and the defendant constitutes an organization with 50 persons, such as the non-indicted 1's own group and organization, who are the second executive officers, within the preexisting 'U.S. wave' organization, and 50 persons, such as the non-indicted 1 who concealed the defendant within the preexisting 'U.S. wave' organization, 'new 'M.P.' organization, and 'M.' organization' as a new violence organization, under the rules of evidence established by the court below and the court of first instance, and the defendant acts with the aim of leading the members of the court below to all the organization and leading the members of the non-indicted 2 and 5 members of the non-indicted 1 to act in accordance with the rules of evidence.

The grounds of appeal disputing this issue are rejected.

2. On the second ground for appeal

The term "the leader" as referred to in Article 4 (1) 1 of the Punishment of Violences, etc. Act refers to a person who directs and leads the activities of an organization as the head of the head of the organization in question. Even if the person does not directly take charge of the general guidance of the members of the organization in front, the leader refers to the leader referred to in this Act, who directs all organizational activities in the hinterland, directs the horse steering staff, or directs the organization activities through the intermediary executive officer who leads him/her, and leads him/her. A member of the last group of the organization in the crime can not be aware of who actually takes the command and command from the middle executive officer, and even if he/she knows two items, he/she may be inferred that the organization's common interest of the organization would not easily reveal the fact (see, e.g., Supreme Court Decision 92Do682, Jun. 26, 1992).

In the same purport, the court below is just in holding that the defendant did not appear entirely in the front and recognized that he led and led the organization through Nonindicted 2, etc. in the hinterland, and it is not erroneous in the misapprehension of legal principles as to the leader of a crime organization.

The ground of appeal disputing this issue is rejected.

3. On the third ground for appeal

According to the reasoning of the judgment below, the court below held that the punishment of 10 years sentenced by the court of first instance is appropriate in consideration of all the circumstances that include the following: (a) the defendant, even before the defendant was a repeated offender, has a history of having been sentenced to imprisonment, which is a criminal organization; (b) denying the crime; and (c) the fact that the defendant does not repent. In light of the records, there is no substantial reason to recognize that the above sentencing of the court below is extremely unfair.

The grounds of appeal on this point cannot be accepted.

4. Conclusion

Therefore, the appeal shall be dismissed, and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jin-hun (Presiding Justice)