Evidence of the suspect examination protocol prepared by the prosecutor

The main text of Article 312(1) of the Criminal Procedure Act provides that "a protocol in which a prosecutor makes a statement of a suspect or a person other than a suspect, and a protocol in which a prosecutor or a senior judicial police officer recorded the result of inspection of evidence may be admitted as evidence at the time when it is admitted by the person making the original statement at a preparatory hearing or during a public trial." Here, the authenticity of formation refers to both the formal authenticity of the protocol, such as seal, signature and seal, and the substantive authenticity that the content of the protocol is recorded as stated by the person making the original statement." Since the authenticity of establishment in the text of the above Act does not include any other method than "by the original statement", it shall be deemed that actual authenticity is recognized only by the original statement, and it is not different in the case of a protocol in which a suspect or a person other than a suspect is a suspect, and it shall be deemed that a protocol in which a prosecutor makes a statement of a suspect or a person other than a suspect, shall be admitted as evidence only when it is admitted as well as the formal authenticity by the original statement or during public trial.

Article 312(1) of the Criminal Procedure Act

Supreme Court Decision 84Do748 delivered on June 26, 198 (Gong1984, 1378), Supreme Court Decision 86Do218 delivered on March 25, 198 (Gong1986, 738), Supreme Court Decision 90Do1474 Delivered on October 16, 1990 (Gong1990, 2348), Supreme Court Decision 92Do769 delivered on June 23, 1992 (Gong1992, 2318) (amended on January 25, 1994), Supreme Court Decision 200Do2949 delivered on September 23, 200, 209, Supreme Court Decision 93Do1747 delivered on September 25, 20194 (amended on September 29, 2009)

Defendant 1 and one other

Defendants

Attorney Lee Yong-hoon et al.

Jeonju District Court Decision 2001No987 delivered on January 17, 2002

The part of the judgment of the court below against Defendant 1 and the part against Defendant 2 shall be reversed, and this part of the case shall be remanded to the Jeonju District Court Panel Division.

1. The main text of Article 312(1) of the Criminal Procedure Act provides that "a protocol in which a prosecutor makes a statement of a suspect or a person other than a suspect and a protocol in which a prosecutor or a senior judicial police officer recorded the result of inspection of evidence may be admitted as evidence when it is acknowledged to be genuine by the person making the original statement at a preparatory hearing or during a public trial." Here, the authenticity of establishment refers to both the formal authenticity of the protocol, such as seal, signature and seal, etc., and the substantial authenticity that the content of the protocol is recorded as stated by the person making the original statement (Supreme Court Decisions 90Do1474 delivered on October 16, 190; 2002Do2112 delivered on August 23, 2002, etc.)."

In addition, the above legal text does not stipulate any method other than "by the original statement of the person who made the original statement", so the actual authenticity may be recognized only by the original statement. This does not differ in the case of the suspect interrogation protocol prepared by the public prosecutor. Article 244(2) and (3) of the Criminal Procedure Act provides for the suspect's right to inspect the suspect's protocol and the right to request an increase or decrease in the interrogation protocol as to the suspect interrogation protocol prepared by the public prosecutor. However, the above provision of the Criminal Procedure Act merely provides that the defendant acknowledged the formation of the formal authenticity of the suspect interrogation protocol prepared by the public prosecutor in the court, and it is difficult to see that the actual authenticity of the protocol is presumed only

According to the above legal text, even in the case of a protocol prepared against a person who is not a suspect, the authenticity of the protocol may be admitted by the person who made the original statement at a preparatory hearing or during a public trial. In this regard, in case where the person who made the original statement recognizes the formal authenticity of the protocol while the contents of the protocol are different from those of the statement and denies the substantial authenticity of the protocol, the Supreme Court held that the authenticity of the protocol is not admissible (see Supreme Court Decisions 2001Do411, Oct. 23, 2001; 2002Do4572, Oct. 24, 2003; 2002Do4572, Oct. 24, 2003). In light of the fact that the protocol of interrogation prepared by the prosecutor and the protocol of statement of a person who is not a suspect are determined to be established in accordance with the same requirements under Article 312(1) of the Criminal Procedure Act, and in practice, the suspect or witness's right to peruse the protocol and the right to request for change, etc.

Therefore, it shall be deemed that a protocol in which a prosecutor makes a statement of a suspect or a person other than a suspect can be used as evidence only when not only the formation of formal authenticity but also the actual authenticity is admitted by the person making the original statement at a preparatory hearing or during a public trial. Such interpretation conforms to the ideology of the trial-oriented principle, which is based on the principle of direct hearing and oral argument adopted by our Criminal Procedure Act.

On the other hand, the previous Supreme Court Decisions 84Do748 delivered on June 26, 198; 86Do218 delivered on March 25, 198; 92Do769 delivered on June 23, 1992; 93Do1747 delivered on January 25, 1994; 200Do299 delivered on June 24, 201; 200Do299 delivered on May 25, 201, 2000, 200Do3489 delivered on May 12, 1995; 200Do299 delivered on June 23, 201; 30Do1747 delivered on June 25, 209; 200Do484 delivered on May 16, 209; 308Do1969 delivered on September 19, 209.

2. According to the reasoning of the judgment below, the court below found the Defendants guilty among the facts charged in this case against the Defendants at the court of first instance, and found the Defendants guilty of all of the interrogation protocol and statement by the prosecutor's office, the prosecutor's protocol and statement by the prosecutor's office, and the prosecutor's protocol by the court of first instance as to the co-defendants at the court of first instance. According to the evidence duly

However, we cannot accept the above determination by the court below for the following reasons.

According to the records, in the list of evidence bound in the records of this case, the defendants agreed to all the documents prepared by the prosecutor for the first time in the court of first instance on the co-defendants in the court of first instance, and on the statement of misunderstanding South, but they agreed to all the documents prepared by the prosecutor against the co-defendants in the court of second instance on the fifth day after the examination procedure for the co-defendants in the court of

However, while recognizing the formal authenticity of the protocol prepared by the prosecutor for himself in the court of first instance, the co-defendants of the court below and Austria stated that the entries of the part corresponding to the above facts charged against the Defendants were written differently from their own statements. Accordingly, Defendant 1 denies the facts charged that no fact was found to have requested the co-defendants of the court below to issue a false certificate of disability in the proceedings in the court of first instance and the reasons for appeal, and consistently asserts that the protocol of the court below's co-defendants of the court below and Austria prepared by the prosecutor is inadmissible since it is not recognized that

In light of these circumstances, it is reasonable to see that in the evidence list of this case, Defendant 1, on the fifth trial date of the court of first instance, stated that he/she has reversed his/her disapprovals to the protocol prepared by the prosecutor against the co-defendant of the court below and agreed to all parts except the parts inconsistent with the statement in the court of first instance, or agreed to all parts in the protocol.

Furthermore, as seen earlier, the co-defendants of the court below stated that any statement that corresponds to the above facts charged against the defendants among the protocol prepared by the prosecutor against himself on the trial date is recorded differently from his own statement and denies the actual authenticity thereof. As such, among the protocol prepared by the prosecutor against the co-defendants of the court below, those parts that correspond to the above facts charged against the defendants are contained in the above facts charged against the defendants cannot be acknowledged as the authenticity of establishment under Article 312(1) of the Criminal Procedure Act because it is not recognized as the actual authenticity in accordance with the above legal principles, and it cannot be acknowledged as the admissibility of evidence because it cannot be recognized as the genuine authenticity under

In addition, even in the case of the protocol of statement prepared by the prosecutor with respect to Austria, it is denied that the statement corresponding to the above facts charged against the Defendants among the protocol on the third trial date of the court of first instance is written differently from its own statement and thus, the actual authenticity of the protocol is denied. Therefore, it is not recognized that the authenticity of the establishment under Article 312 (1) of the Criminal Procedure Act is not recognized in accordance with the above legal principles

Nevertheless, the court below recognized the admissibility of evidence on the premise that the substantial authenticity is presumed to have been established on the grounds that the protocol prepared by the prosecutor against the co-defendants of the court below and the Appellate Nam is established, and found guilty on all of the facts charged, thereby misunderstanding the legal principles as to the admissibility of evidence as seen earlier, thereby affecting the conclusion of the judgment. Thus, the ground of appeal assigning this error has merit.

Therefore, without further review as to the remaining grounds of appeal by the Defendants, the part convicting the Defendants of the above facts charged among the judgment below should be reversed. Since the above facts charged and the part violating the Framework Act on the Construction Industry concerning false submission of construction records are concurrent crimes under the former part of Article 37 of the Criminal Act, Defendant 1 may not reverse the entire conviction part of the judgment below.

Therefore, the part against Defendant 1 and Defendant 2 among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) is delivered with the assent of all Justices Lee Jae-chul, Justice Lee Jae-chul, Justice Kim Yong-dam (Presiding Justice).