The judge who examined the witness upon the request of the prosecutor for the preservation of evidence before the institution of public prosecution can not be said to be the judge who participated in the so-called prior trial or the investigation and trial based on the Criminal Procedure Act Article 17 subparagraph 7.

The judge who examined the witness upon the request of the public prosecutor for the preservation of evidence cannot be said to be the judge who participated in the previous trial or the basic investigation and hearing as provided in paragraph 7 of this Article.

Article 17 of the Criminal Procedure Act

Defendant

Prosecutor

Seoul Criminal District Court Decision 70No1188 delivered on April 20, 1971, Seoul High Court Decision 70No1188 delivered on April 20, 1971

The appeal is dismissed.

The Prosecutor’s ground of appeal No. 1 was examined

A judge who examined a witness pursuant to Article 184 of the Criminal Procedure Act upon the request of the public prosecutor prior to the institution of public prosecution cannot be deemed to be a judge who participated in the so-called prior trial, its basic investigation, or trial under Article 17 subparagraph 7 of the Criminal Procedure Act. Thus, in this case, the judge who examined the witness upon the request of the public prosecutor for the preservation of evidence under Article 184 of the Criminal Procedure Act participated in the original judgment and thus, it cannot be deemed that the judge who is the cause of exclusion participated in the original judgment.

The second ground of appeal is examined;

Even after comparing the original judgment with the records, it cannot be seen that there was an error of violation of the rules of evidence in the preparation of evidence and the fact-finding. Therefore, the argument is without merit.

Therefore, the appeal is dismissed without merit. It is so decided as per Disposition by all participating Justices on the bench.

Justices of the Supreme Court (Presiding Judge) Dog-Jak Kim Kim-nam Kim Young-gu