If the consent of evidence is revoked or withdrawn after the examination of evidence is completed (negative)

The declaration of consent to evidence stipulated in Article 318 of the Criminal Procedure Act may be revoked or withdrawn before the completion of the examination of evidence, but once the examination of evidence is completed, the consent of the first instance court cannot be revoked in the second instance because it is not recognized after the examination of evidence. On the other hand, even if the declaration of consent to evidence is revoked or withdrawn after the examination of evidence is completed, the admissibility already acquired before such revocation or withdrawal shall not be lost

Article 318(1) of the Criminal Procedure Act

Supreme Court Decision 83Do267 delivered on April 26, 198 (Gong1983, 936) Supreme Court Decision 90Do2525 Delivered on January 11, 1991 (Gong1991, 786) Supreme Court Decision 93Do955 Delivered on July 29, 1994 (Gong194Ha, 2245)

Defendant

Defendant

Busan District Court Decision 96No951 delivered on September 13, 1996

The appeal is dismissed.

We examine the grounds of appeal.

1. As to the assertion on the admissibility of some evidence

First of all, among the evidence of the first instance court which the court below maintained, the contents of each protocol of interrogation of the accused prepared by the assistant judicial police officer do not correspond to the fact that the accused injured the victim. Rather, according to the records, the defendant's contents are only those as argued in the court. Therefore, since the defendant completely denied the facts charged in this case in the court, it cannot be deemed that the defendant denied the contents of each protocol of interrogation of the accused. Furthermore, according to the comparison with the records, even if the above each protocol of interrogation of the suspect is excluded, the court of first instance can sufficiently recognize each of the facts charged in this case against the defendant only by other evidences employed by the court of first instance.

Next, with respect to a diagnosis of preparation of a doctor Kim Wo-so and a written confirmation of preparation of a doctor's general affairs, which the first instance court has employed, the declaration of consent to evidence under Article 318 of the Criminal Procedure Act may be revoked or withdrawn before the completion of the examination of evidence. However, since the withdrawal or withdrawal is not recognized after the examination of evidence is completed, the consent from the first instance court cannot be revoked or withdrawn. On the other hand, even if the declaration of consent is revoked or withdrawn after the examination of evidence is completed, the admissibility already acquired before the withdrawal or withdrawal of evidence is not lost (see, e.g., Supreme Court Decisions 83Do267, Apr. 26, 1983; 90Do2525, Jan. 11, 1991; 93Do955, Jul. 29, 194).

According to the evidence list which forms part of the protocol of this case, the above medical certificate and treatment certificate are written as consent of the defendant on the first day of the first instance trial, and the court of the first instance stated as the defendant did not have any opinion about the examination of evidence on the second day of the first instance trial, and there is no trace to deem that the declaration of consent to each of the above evidence was cancelled or withdrawn before the examination of evidence is completed on the second day. Therefore, even if the defendant asserted that the above evidence cannot be admitted in the appellate brief after the defendant asserted that the above evidence cannot be admitted in the appellate brief, the evidence duly granted to the above evidence is not lost, and there is no violation of law as discussed by the court below as evidence to acknowledge the parts and degree of injury of each of the above medical certificate and treatment certificates. Therefore, there is no ground to hold that there is no admissibility of evidence on the part of the court below.

2. As to the assertion that the defendant's act constitutes Article 21(3) of the Criminal Act or Article 8(3) of the Punishment of Violences, etc. Act

In addition, according to the records, the court below cannot be deemed to have committed an unlawful act that does not apply Article 21(3) of the Criminal Act and Article 8(3) of the Punishment of Violences, etc. Act, since there is no evidence to deem that the defendant intentionally committed the crime of this case in order to create favorable evidence in the victim's divorce lawsuit at night, and the defendant committed the crime of this case in order to restrain the act by bad faith and depression. There is no reason to discuss this issue.

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

Justices Jeong Jong-ho (Presiding Justice)