[1] Where emergency arrest does not meet the requirements and constitutes an illegal arrest, and whether it is admissible as evidence of the protocol of examination of suspect prepared during the interrogation by illegal arrest (negative)

[2] The elements to acknowledge the conviction only by the statement of the person who has received the bribe in the case of the bribery where the person who was selected as the person who received the bribe denies the fact of the bribery and there is no evidence such as financial materials to support the bribery

[3] The case holding that it is not possible to acknowledge the credibility of the prosecutor's statement that the mineer offered a bribe

[1] Emergency arrest is exceptionally permitted only when the requirements of Article 200-3 (1) of the Criminal Procedure Act are met as an exception to the principle of warrant requirement. Emergency arrest that fails to meet the requirements constitutes illegal arrest as a warrant without legal basis. Here, whether it satisfies the requirements of emergency arrest is not based on the circumstance revealed ex post facto, but on the basis of the situation at the time of arrest. In this regard, it is not based on the situation at the time of emergency arrest, but on the basis of the situation at the time of arrest. In addition, if a prosecutor or judicial police officer's judgment as to whether it is satisfied is considerably unreasonable in light of the empirical rule even when it is viewed as the situation at the time of emergency arrest as the situation at the time of emergency arrest, such arrest is illegal arrest. Such illegality goes against the warrant requirement, and the protocol of examination of suspect examination prepared during the arrest is evidence illegally collected, and it is not admitted as evidence of guilt unless there are special circumstances.

[2] In the case of the crime of bribery, in order to acknowledge the defendant, who was selected as the bribe recipient, denies the fact of the bribery, and there is no evidence such as financial materials to support the bribe, there should be evidence, and there should be credibility enough to exclude a reasonable doubt. In determining credibility, not only the rationality, objective reasonableness, consistency before and after the statement itself, but also the human nature of the defendant, and in particular, in the case where there is a suspicion of a crime against him, and there is a possibility that the investigation may be commenced, or an investigation is being conducted, if there is a possibility that the statement might not be admissible, it should also be examined whether there may affect the statement that the defendant tried to escape from the imminent position due to such suspicion, even if the evidence of the statement does not reach the extent that the statement is denied.

[3] The case holding that it is not possible to recognize the credibility of the prosecutor's statement that the mineer offered a bribe

[1] Articles 200-3 (1) and 309 of the Criminal Procedure Act / [2] Articles 129 (1) and 133 of the Criminal Act, Article 308 of the Criminal Procedure Act, Article 2 (1) of the Aggravated Punishment, etc. of Specific Crimes / [3] Article 308 of the Criminal Procedure Act

Defendant 1 and two others

Defendant 2 and Prosecutor

Attorneys Choi Han-chul et al.

Seoul High Court Decision 2000No1402 delivered on November 21, 2000

The prosecutor's appeal and Defendant 2's appeal are all dismissed.

1. Judgment on the grounds of appeal by the prosecutor

A. As to the admissibility of each protocol of examination of suspect against Defendant 1 prepared by the prosecutor

As an exception to the principle of warrant requirement, an emergency arrest is exceptionally permitted only when all the requirements of Article 200-3(1) of the Criminal Procedure Act are met. An emergency arrest without any legal basis is an illegal arrest. Here, whether the requirements of an emergency arrest are met or not is determined based on the situation at the time of arrest, not based on the ex post facto evidence, but on the basis of the situation at the time of the emergency arrest. In addition, it is determined based on the situation at the time of the emergency arrest. In addition, if a prosecutor or judicial police officer’s judgment on whether the requirements are met is considerably unreasonable in light of the empirical rule in light of the situation at the time of the emergency arrest, the arrest is illegal arrest. Since such illegality violates the warrant requirement, the interrogation protocol of suspect interrogation prepared during the arrest violates the warrant requirement, and it cannot be admitted as evidence of guilt unless there are special circumstances.

According to the records, the prosecutor of the investigation secured the statement of the defendant 3 and the relevant witness that the defendant 1 had been given a bribe on November 29, 199, and the prosecutor of the investigation was ordered to summon and investigate the defendant 1, who is the incumbent head of the Gun, at around 16:40 on December 8, 199, but the above defendant arrived at the military room of the Gwangju Gun Office located in Gyeonggi-gu, but it was confirmed the whereabouts of the head of the Gun, who is the head of the urban administration division, because he did not know in advance that the above defendant want to summon himself, and therefore, the investigator was waiting for the above emergency arrest at 17:30 on the same day, and it was hard for the prosecutor to easily inform the defendant of the evidence destruction and evidence destruction at the place of the above 9:17:30 on the same day, and there was no time to inform the above defendant of the emergency arrest, which was prepared by the prosecutor, as well as the evidence destruction of evidence.

In the same purport, the judgment of the court below that denied the admissibility of each protocol of examination of accused 1 prepared by the prosecutor is just, and there is no error of law by misunderstanding the requirements of emergency arrest and the admissibility of evidence.

B. As to the credibility of Defendant 3’s prosecutor’s statement

In order to find a defendant, who is classified as a bribe in the course of bribery, denies the fact of the bribery and has no evidence, such as financial data to support the bribery, there should be evidence of the witness's statement in order to find him guilty only with the statement of the receiver, and there should be credibility enough to exclude a reasonable doubt. In determining credibility, not only the rationality, objective reasonableness, consistency in the contents of the statement itself, but also its human beings, and in particular, in the event there is a suspicion of a crime committed against him/her and there is a possibility of the commencement of an investigation, or in the course of an investigation, there should be also examined whether there is a relation between him/her and his/her human being, especially if there is a suspicion of the crime committed against him/her and there is a possibility of the commencement of an investigation, or if there is a possibility that the admissibility of the statement will be denied, and even if there is no evidence to support it, efforts to escape from the imminent situation may affect

With respect to the credibility of Defendant 1’s prosecutorial statement, which corresponds to the facts charged in this case, that Defendant 1 received a bribe of KRW 50 million from Defendant 3, the court below determined that the statement lacks consistency with various matters as stated in its reasoning, its attitude is a dualistic, there is a suspicion that the statement about the name of the offering of a bribe is true, and the source of the bribe is unclear, and at the time of its statement, Defendant 3 was detained in the case of accusation, such as violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and was investigated, and the case among the accusation case after the prosecutor’s statement was tried to be tried to be tried to be investigated, as well as the case was tried to be tried to be tried to be tried to be tried to be separated from only the part of the crime of forging a private document relatively minor, but also the case was received from the prosecutor’s opinion on bail ( Notwithstanding these circumstances, the judgment of the court below is just in its holding that the court below did not admit the credibility of the prosecutor’s statement of this case as evidence.

C. As to the statements by the Defendant 2, such as the interference of truth, Kim Jong-ok, the most perfection, the stuff and the defendant 2

According to the reasoning of the judgment below, the court below rejected all of the statements made by the prosecutor's office and court of the above persons on the ground that they are not only insufficient evidence to support the facts of acceptance of bribe of this case by Defendant 1, but also difficult to believe on the grounds of its stated reasoning. In light of the records, the judgment of the court below is just and there is no violation of the rules of evidence.

D. As to the fact that Defendant 2 received gold KRW 20,000,000 from Defendant 3

For the reasons indicated in its holding, the court below acquitted Defendant 3 of this part of the facts charged on the ground that it is not sufficient to recognize the above facts charged on the grounds that the statement made by the prosecutor and the court of first instance, which corresponds to this part of the facts charged, and the statement made by the prosecutor of Kim Jong-ok and the statement of the deposit transaction record certificate alone, are insufficient to believe the above facts charged. In light of the records, the above judgment of the court below is just and acceptable,

Therefore, the prosecutor's ground of appeal cannot be accepted.

2. Judgment on Defendant 2’s grounds of appeal

The court below recognized the fact that Defendant 2 received bribe of KRW 5,00,00 from Defendant 3 based on the evidence duly examined and adopted by the court of first instance, and ruled that the above acceptance was related to Defendant 2’s duties and rejected the assertion that Defendant 2 immediately returned the above mobile phone. In light of the records, the above fact-finding and legal judgment are just and acceptable, and there is no error of law by misunderstanding facts or misunderstanding legal principles in the process, which affected the conclusion of the judgment.

In addition, in this case where a sentence of less than 10 years against Defendant 2 was imposed, the argument that the judgment of the court below is too unreasonable cannot be a legitimate ground for appeal.

3. Conclusion

Therefore, all of the Prosecutor’s appeals and Defendant 2’s appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)