Whether the investigation conducted by the prosecutor who participated in the execution of a prosecutor or a search and seizure warrant, which is a criminal victim, is legitimate

A prosecutor, who is a victim of a crime, is involved in the investigation of the case or the prosecutor who participated in the execution of a warrant of search and seizure, cannot be deemed unlawful immediately or voluntary to make statements from a witness or suspect, solely on the ground that the prosecutor was involved in the investigation again.

Articles 17 subparag. 1, 18, 24, 121, and 312(1) and (4) of the Criminal Procedure Act

Defendant 1 and six others

Defendants

Law Firm Jin-Myeon et al.

Seoul Western District Court Decision 2011No618 decided September 8, 2011

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

The Defendants’ allegation in this part of the grounds of appeal is merely to criticize the selection of evidence and fact-finding, which belong to the lower court’s exclusive jurisdiction, and thus does not constitute legitimate grounds of appeal.

2. As to the third ground for appeal

The main text of Article 312(4) of the Criminal Procedure Act provides that "a protocol in which a prosecutor or senior judicial police officer recorded a statement by a person other than a defendant is prepared according to lawful procedures and methods, and such protocol is recorded the same as the statement made before a prosecutor or senior judicial police officer, shall be proved by a statement at a preparatory hearing or a trial date or by any other objective method, and the defendant or defense counsel may have the original person examined the contents thereof at a preparatory hearing or a trial date."

According to the records, the Nonindicted Party appeared as a witness on the seventh trial date of the first instance court, and stated that some of the written statements concerning himself prepared by the prosecutor do not have the same contents as the Nonindicted Party stated, and there was no video-recording or any other objective method of evidence which proves that the above written statements in the first instance court and the court of the lower court have the same contents as the Nonindicted Party stated.

In such a case, the court below should have denied the admissibility of evidence after specifically examining what portion of the written statement of the non-indicted in the prosecutor's non-indicted in the written statement of the prosecutor's non-indicted in the written statement, but maintained the first instance court's measure that recognized the admissibility of all the above written statement of the non-indicted in the written statement of the non-indicted in the written statement and adopted it as evidence. Thus, the court below erred by misapprehending the legal principles under

However, in light of the remaining evidence duly admitted by the first instance court, the lower court’s conclusion that found the Defendant guilty of the instant facts charged is just, and eventually, the lower court’s erroneous judgment as to the admissibility of evidence in the protocol did not affect the conclusion of the judgment. Therefore, this part of the grounds of appeal cannot be accepted.

3. As to the fourth ground for appeal

Examining the reasoning of the lower judgment in light of the relevant law and the evidence duly admitted by the first instance court, the lower court was justifiable to have determined that the prosecutor and investigator lawfully presented the instant search and seizure warrant on the grounds stated in its reasoning. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the presentation of search and

4. As to the fifth ground for appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, the lower court was justifiable to have determined that, at the time of the instant search and seizure, the place of the instant crime was within the scope that guarantees the right to participate of visitors, etc., since the public prosecutor and investigators did not arrive at the search and seizure place indicated in the instant search and seizure warrant, and thus, the execution of the warrant was not commenced. In so determining, the lower court did not err by misapprehending the legal doctrine on the participation of visitors at the time of the execution of

5. Regarding ground of appeal No. 6

The prosecutor, who is the victim of a crime, is involved in the investigation of the case or the prosecutor who participated in the execution of a warrant of search and seizure, cannot immediately be deemed unlawful, or there is no voluntariness in the statement of a witness or a suspect. The first instance court maintained by the lower court determined that the admissibility of evidence, such as the statement of a witness, prepared by the prosecutor, etc. merely because the prosecutor, etc. who was victimized by violence, etc. during the execution of the warrant of search and seizure of this case was involved in the investigation. In light of the above legal principles, the lower court’s determination is justifiable, and there

6. Conclusion

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

Justices Kim Chang-suk (Presiding Justice)