Defendant

Prosecutor

Kim Jong-Un

Attorney Kim Jong-soo (Korean)

Suwon District Court Decision 2009Gohap2593 Decided November 6, 2009

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

It is difficult to view that a judicial trainee acting on behalf of the public prosecutor is different from the case of the public prosecutor in terms of qualifications for appointment, appointment authority, appointment procedure, etc. Therefore, the protocol of interrogation of a prosecutor acting on behalf of the public prosecutor should be judged as admissibility. Thus, in this case, each crime in the table of crime Nos. 1, 4, 5, and 6 as indicated in the judgment of the court below can be sufficiently recognized, and habituality is also recognized. Therefore, the court below that recognized only the crime in the judgment of the court below as a crime of simple larceny and embezzlement of stolen is erroneous in matters of violation of the rules of evidence and misapprehension

2. Determination

(a) Whether it is possible to treat the suspect interrogation protocol prepared as the same as the interrogation protocol prepared by a prosecutor, who is a judicial trainee;

Article 32 of the Public Prosecutor's Office Act provides that a legitimate subject of the protocol of interrogation of a suspect is a public prosecutor or judicial police officer, and a judicial trainee is merely a person who can act on behalf of the public prosecutor at the request of the Director of the Judicial Research and Training Institute pursuant to Article 32 of the Public Prosecutor's Office Act. Unlike the suspect interrogation protocol prepared by an investigation agency other than the public prosecutor, which is hearsay evidence, the suspect interrogation protocol prepared by an investigation agency other than the public prosecutor may be admitted as hearsay evidence even if the defendant denies its contents in the court. In order to secure the above nature of the prosecutor, the prosecutor needs the same qualification as a judge and status as a public prosecutor is guaranteed (Articles 29, 34(1), and 37 of the Public Prosecutor's Office Act). However, although it is possible that a judicial trainee may be appointed as a public official in special service appointed by the Chief Justice pursuant to Article 72 of the Court Organization Act after completing training at the public prosecutor, it does not meet the same qualification as the public prosecutor and does not obtain an exception under the hearsay rule.

In addition, this conclusion is also true in view of the Supreme Court precedents that held that "the protocol of interrogation of the accused, which is prepared by the prosecutor, shall not be deemed to be "the protocol of the suspect or a person other than the suspect" under Article 312 (1) of the Criminal Procedure Act, and its admissibility shall be determined in accordance with the same standard as the protocol of interrogation prepared by the investigative agency other than the prosecutor, where "the protocol of interrogation of the accused or the person other than the suspect shall not be deemed to be "the protocol of the prosecutor's statement or the person other than the suspect," which held that "the prosecutor prepared the protocol of interrogation of the accused who was a suspect without the presence of the prosecutor in charge of the prosecutor in charge of the prosecutor's office and the assistant in charge of the prosecutor's office and prepared the suspect's statement to the effect that the accused made a confession after the investigation of the accused and examined the protocol of interrogation of the accused."

Therefore, on such premise, the judgment of the court below that found the defendant not guilty of each crime Nos. 1, 4, 5, and 6 in the list of crimes as stated in the judgment below is just, and the prosecutor's assertion against this is not accepted.

B. Whether habitualness is recognized

According to the records, on March 21, 2001, the defendant was subject to juvenile protective disposition by special larceny and inhalement of hallucinogenic substances at the Suwon District Court, and on October 21, 2005, he was sentenced to a suspended sentence of two years by imprisonment with prison labor for "violation of the Act on the Aggravated Punishment, etc. of Specific Crimes" at the Suwon District Court, and on April 7, 2008, he was sentenced to a fine of two million won by the Suwon District Court for attempted larceny.

However, the crime of larceny on a vending machine installed on the street, and the crime of larceny attempted to commit the crime of larceny was committed once on November 6, 2007, which was committed after about two years and eight months have passed since the previous larceny committed. The crime of larceny in this case was committed once again on the same day, one of which was 600 won in a vehicle, and the remaining one of which was stolen on the street, and it was similar to the crime of larceny in some of the above previous crimes, but it is difficult to conclude that the crime of larceny in this case was committed based on the origin of the Defendant’s recidivism, taking into account the time, frequency, and gravity of the crime. There is no other evidence to acknowledge the habituality.

Therefore, the prosecutor's assertion on this part is not accepted.

3. Conclusion

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

Judges fixed-day (Presiding Judge) and fixed-time assistance