Whether the admissibility of evidence of a protocol of interrogation containing a charge of perjury against a witness who was summoned by a prosecutor at a preparatory hearing or during a public trial, after the summons of the witness who made a testimony favorable to the defendant, or a protocol of protocol of interrogation containing a charge of perjury is acknowledged (negative in principle)

Articles 307, 308, 312(1) and (4), and 318 of the Criminal Procedure Act

Supreme Court en banc Decision 99Do1108 Decided June 15, 200 (Gong2000Ha, 1713) Supreme Court Decision 2012Do1365 Decided August 14, 2013 (Gong2013Ha, 1713)

Defendant 1 and 11 others

Defendant 1 and three others and the Prosecutor

Attorney Or-ju et al.

Gwangju High Court Decision 2016No232 decided January 12, 2017

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to Defendant 12’s appeal

The above defendant did not submit a statement of grounds for appeal within the statutory period, and the petition of appeal does not contain any indication in the grounds for appeal.

2. As to the grounds of appeal by Defendants 1 and 8

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, it is justifiable for the lower court to have found the Defendants guilty of all the facts charged (excluding the part not guilty). In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on evidence law, property flight, and foreign currency flight, or omitting judgment.

3. As to Defendant 2’s ground of appeal

Unless the prosecutor summonss a witness who has already completed testimony at a preparatory hearing or during a public trial and reverses it unilaterally, the protocol of statement prepared by the method of questioning the contents of testimony favorable to the defendant, or the protocol of interrogation containing the suspicion of perjury against the witness, which contains the fact that the defendant can be admitted as evidence, shall be inadmissible. However, if the previous witness who is the original person who made the statement, appeared in the court again and made a testimony, the testimony itself may be admitted as evidence of guilt (see, e.g., Supreme Court en banc Decision 9Do108, Jun. 15, 200; Supreme Court Decision 201Do1365, Aug. 14, 2013); and it is justifiable for the court below to adopt the testimony, etc. of the non-indicted as evidence.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have found the Defendant guilty of the charge of this case (excluding the part on acquittal) on the grounds stated in its reasoning, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on evidence law

4. As to the prosecutor's appeal

Examining the reasoning of the judgment below in light of the records, the court below is justified in finding the defendant 1, 2, 7, 9, 10, 11, 8, and 12 not guilty on the ground that there is no proof of each crime as to all the facts charged against the defendant 1, 2, 7, 9, 10, 11, 8, and 12, and all the facts charged against the defendant 3, 4, 6, and 5. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the scope of officers deemed as public officials

On the other hand, while the prosecutor appealed the entire judgment of the court below, there is no entry of the grounds of objection in the petition of appeal and the appellate brief.

5. Conclusion

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

Justices Kim Yong-deok (Presiding Justice)