[1] The case affirming the judgment of the court below which held that the interrogation protocol prepared by the prosecutor is not "a protocol in which the prosecutor's statement is written by the suspect or a person who is not the suspect" under Article 312 (1) of the Criminal Procedure Act, since the prosecutor prepared an interrogation protocol by questioning the defendant who was the suspect without the prosecutor's attendance according to the prosecutor's order and the prosecutor made an overall questioning to the defendant immediately after the prosecutor is in charge of interrogation

[2] The measure to be taken by the appellate court in a case where the facts charged as modified by the first instance court re-amended to the facts charged at the time of the first indictment

[1] The case affirming the judgment of the court below which held that since the suspect interrogation protocol of the defendant, which was prepared by the prosecutor, cannot be viewed as a "written statement of the suspect or a person other than the suspect" under Article 312 (1) of the Criminal Procedure Act, the admissibility of evidence should be determined in accordance with the same manner as the interrogation protocol prepared by investigation agency other than the prosecutor, since the suspect interrogation protocol of the defendant, which was prepared by the prosecutor, could not be viewed as a "written statement of the suspect or person other than the suspect," and the prosecutor prepared a suspect interrogation protocol which was prepared to the effect that the suspect interrogation protocol of the defendant, which was prepared to the effect that the prosecutor completed the investigation of the defendant and made a confession of the defendant, and then examined it, the prosecutor prepared the suspect interrogation protocol which was prepared to the effect that "if the defendant was under investigation," and it cannot be viewed as a "written statement of the suspect or person other than the suspect," and it cannot be admitted as evidence as long as the defendant denies its contents.

[2] A change in the indictment can be made not only in the first instance court but also in the appellate court. This is permitted only to the extent that it does not harm the identity of the facts charged. Thus, even in a case where the facts charged as stated in the indictment are changed to the extent that its identity is recognized, the part of the indictment concerning the original facts charged shall be deemed to have been partially revoked, and thus, the dismissal of prosecution shall not be decided. Furthermore, in a case where the modified facts charged as mentioned above is re-established to the facts charged at the time of the initial institution of the public prosecution, unless the new indictment

[1] Article 312(1) and (2) of the Criminal Procedure Act / [2] Articles 255(1), 298(1), 327 subparag. 4, 328(1)1, and 329 of the Criminal Procedure Act

[1] Supreme Court Decision 90Do1483 delivered on September 28, 1990 (Gong1990, 2250)

Defendant 1 and one other

Defendant 1 and Prosecutor

Attorneys Kim Jong-soo et al.

Daejeon High Court Decision 2001No779 delivered on July 26, 2002

All appeals are dismissed.

1. As to the prosecutor's appeal

The court below held that the first interrogation protocol on the defendant 2 prepared by the prosecutor was prepared by the prosecutor, and that the prosecutor in charge of the defendant 1 and the assistant prosecutor in charge of the prosecutor's office did not attend the court, and that the prosecutor prepared the suspect interrogation protocol stating the defendant 2 to the effect that the non-indicted 1 et al. would end the investigation on the defendant 2 and bring about the suspect interrogation protocol, and that the above defendant's interrogation protocol was "whether it is true or not," and that the above defendant's interrogation protocol was examined directly and individually. Thus, the above interrogation protocol on the defendant 2 cannot be viewed as "a statement on the suspect or a person other than the suspect" as provided by Article 312 (1) of the Criminal Procedure Act, and since the prosecutor prepared the suspect interrogation protocol and the remaining interrogation protocol on the defendant 2 cannot be viewed as a "a statement on the suspect or a person other than the suspect," it cannot be viewed as a "a statement on the suspect's interrogation protocol prepared by the defendant 2 and the remaining interrogation protocol prepared by the defendant 24 as evidence.

In light of the records, the fact-finding and legal judgment of the court below are justified, and there is no error in the misapprehension of facts against the rules of evidence or by misapprehending the legal principles as to the admissibility of the protocol prepared by the prosecutor, as otherwise alleged in the grounds of appeal.

2. As to Defendant 1’s appeal

A. Amendment of the indictment can be made not only in the first instance trial but also in the appellate trial, but it is permitted only to the extent that the identity of the charges is not undermined. Thus, even in the case where the facts charged as stated in the indictment are modified to the extent that it is recognized as identical to the facts charged, the decision to dismiss the prosecution as to the part of the original facts charged should not be made on the ground that the partial revocation of the indictment was made. Furthermore, even in the case where the modified facts charged as mentioned above is re-established to the facts charged at the time of the initial indictment, the judgment to dismiss the

According to the records, among the facts charged on April 11, 1996 among the 11st trial of the first instance court of this case, the contents of the solicitation for the part that received a bribe in connection with his duties after receiving KRW 2 million from the official residence of the office of education (name omitted), which was the head of the office of education located in the Dong-gu Office of Education, on the 5th trial date, from the " from the special audit of the office of education in the Cheong-gu Office of Education in relation to the receipt of goods such as harmony from the parents" that the teachers of the elementary school originally requested the special audit of the office of education in relation to the receipt of goods such as harmony from the parents." The court below changed the contents of the above solicitation to the "to request the special audit of the office of education in the Cheong-gu Office of Education related to the receipt of assistance to the parents for the school meal facilities of the above elementary school." Thus, the court below was just in accordance with the above legal principles and there is no error of law by misapprehending the legal principles as to the modification of indictment or the form of litigation.

B. In light of the records, the court below recognized that Defendant 1 received a bribe in relation to the duties of the Defendant respectively from Nonindicted 3, Nonindicted 4, Nonindicted 5, and Nonindicted 6 of this case, and recognized the Defendant as a crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) and bribery. In light of the records, such measures of the court below are just, and there is no violation of the rules of evidence as alleged in the ground of appeal by misapprehending the legal principles as to the scope of duties, which are the premise for establishing the crime of bribery, or by misapprehending the legal principles

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)