[1] Whether the statement made by a person other than the defendant can be a supporting evidence for the confession of the defendant (negative)

[2] Evidential evidence of concurrent crimes and confession

[3] The case holding that evidence of the fact that he remitted the purchase price of a phiphone cannot be evidence of the act of medication of a phiphone which has a relation of substantive concurrent crimes with the crime of purchase of a phiphone

[4] The probative value of the defendant's maternity to ask for appraisal by the director of the National Institute of Scientific Investigation as to whether the main ingredient was detected in the defendant's hair

[1] Although the contents of the statement made by a person other than the defendant that the defendant made as a person to commit the crime are not included in the confession of the defendant under Article 310 of the Criminal Procedure Act, it cannot be the reinforced evidence of the confession of the defendant.

[2] Since substantive concurrent crimes are crimes, there should be reinforced evidence of confessions as to each crime.

[3] The case holding that evidence of the fact that he remitted the purchase price of a phiphone cannot be evidence of the purchase price of a phiphones with the relation of substantive concurrent crimes with the crime of purchase of phiphones

[4] In a case where there is a request for appraisal by the head of the National Institute of Scientific Investigation for Narcotics Control, etc. (hereinafter referred to as “the head of the National Institute of Scientific Investigation”) that the Mescopher component was detected in the Defendant’s hair, barring any specific circumstances such as the change of hair, which is the test material, or mistake or error, in the appraisal that is the basis of the response, the Mescopher component was detected in the hair taken from the Defendant. Therefore, under logical and empirical rules, the Defendant should be recognized as having administered the Mescophere before collecting the hair subject to appraisal. However, if there is a request for appraisal by the head of the National Institute of Scientific Investigation for Narcotics Control, etc., that the Mescopher component was not detected in the Defendant’s hair, it should be determined that the Mescophere component was not in a contradictory condition or not in a contradictory condition from the date of the request for appraisal of personal age, gender, race, nutritional condition, replacement, etc., but it is not reasonable to conclude that the above request for appraisal or prescription itself was not reasonable.

[1] Article 310 of the Criminal Procedure Act / [2] Article 310 of the Criminal Procedure Act / [3] Article 37 of the Criminal Act, Article 310 of the Criminal Procedure Act / [4] Articles 199 and 308 of the Criminal Procedure Act, Article 2 subparagraph 4 (b) and Article 60 (1) 3 of the Narcotics Control Act, Article 2 (3) of the Enforcement Decree of the Act on the Control of Narcotics, Etc.

[1] Supreme Court Decision 81Do1314 delivered on July 7, 1981 (Gong1981, 14181) / [2] Supreme Court Decision 4292Do122 delivered on June 30, 1959 / [4] Supreme Court Decision 94Do1680 delivered on December 9, 1994 (Gong195Sang, 531)

Defendant

Defendant

Attorney Lee Do-apap

Incheon District Court Decision 2007No1997 Decided December 6, 2007

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. As to the grounds of appeal by a public defender

According to the provisions of Article 383 subparagraph 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only for a case on which death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. As such, in a case where the defendant was sentenced to a minor imprisonment for ten months, the reason that the sentencing of a sentence is unreasonable is not legitimate

2. As to the Defendant’s ground of appeal

A. As to the corroborating evidence of the confession

According to the reasoning of the judgment of the court of first instance maintained by the court below, the court below found the defendant guilty of the facts charged in this case that "Chophone was administered in a way of melting about 0.03 grams in the 5th floor room near Daegu 4, Daegu 4,00,00 in the middle of June, 207, in a non-indicted 22:0, in a non-indicted 5-dong 4, Dong-gu, Daegu 4,00 and in a non-indicted 1, in a way of injection into his own arms by dilutioning about 0.03g of phiphones contained in the single-use 4,000."

In light of the records, ① the statement of the defendant in the court and the statement of the suspect examination of the defendant in the prosecution against the defendant are confessions made by the defendant in the court and the prosecutor's office, and they cannot be used as evidence of guilt only with the confessions included in the concept of confessions prescribed in Article 310 of the Criminal Procedure Act. ② The statement of the prosecutor's office against the non-indicted 1 is hearsay evidence, but in this case, the defendant's consent is deemed to be obtained under Article 318-3 of the Criminal Procedure Act in a case where he decided to judge by the simple trial procedure, although it is hearsay evidence, it is admitted as hearsay evidence, and it does not include the statement of the defendant in the confession itself, and it does not include the confession of the defendant. However, if the contents of the statement in the prosecutor's examination of the prosecutor's office against the defendant are used as evidence to reinforce the confession of the defendant, it cannot be said that the confession of the defendant was made as confessions of the defendant, and it does not require any reinforcement.

On the other hand, since substantive concurrent crimes are crimes, there should be reinforced evidence for confession as to each crime (see Supreme Court Decision 4292Ma122, Jun. 30, 1959). Of the evidence that the first instance court did not consider as evidence of guilt, the report on the execution of a warrant of search, seizure, and verification of evidence of "the fact that the defendant purchased phiphone from Nonindicted 2 and remitted the price to the bank account designated by Nonindicted 2" (see Supreme Court Decision 103, Jun. 30, 1959) can be the reinforced evidence for the purchase of phiphones, and it cannot be the reinforced evidence for the purchase of phiphones.

Thus, without any supporting evidence, the court below's measure which maintained the first instance court's judgment that found the defendant's confession of this case alone and sentenced him guilty is erroneous in the misunderstanding of evidence judgment as to the confession evidence and affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

B. As to the hair and urine test

In a case where there is a table of request for appraisal by the head of the National Institute of Scientific Investigation, where a Mesphere is detected in Defendant Masphere, unless there are specific circumstances such as the change of the hair, which is a test subject matter, or there was an error or error in the appraisal that served as the basis of the response, it should be recognized that the Mesphere was detected in the hair collected from the Defendant. Accordingly, under the rule of logic and experience, the Defendant should be recognized that there was a fact that Mesphere was administered in Mesphere before collecting the Mesphere subject to appraisal (see Supreme Court Decision 94Do1680, Dec. 9, 194).

However, according to the records, the prosecutor requested the National Scientific Investigation Agency of Science to conduct a drug reaction test on the change or hair of the defendant taken on July 6, 2007 from the date of the crime in this case to confirm whether the defendant's phiphone medication has been administered. The Director of the National Scientific Investigation Agency of Science requested the National Scientific Investigation Agency to conduct a drug reaction test on the defendant's change or hair taken on July 6, 2007, within one month from the date of the crime in this case. In addition, in the case of maternity appraisal, the number of the defendant's hair 120cm in length is cut from 5 to 3cm in length to 3cm in length, but all divided tests were conducted from the end of 3cm in length, but the Melogramo was not detected at least from the date of the test to the end of 5cm in length. Thus, the defendant did not have any difference in the individual's age, gender, race, nutritional condition, and vehicle composition at least from the average month of 1cm in length to the me.

Therefore, the court below should have deliberated on whether there are other circumstances to suspect the credibility of the result of the appraisal, on the grounds that the appraiser is not fully qualified, the management and preservation status of the appraisal data or the method of inspection is not appropriate, the process of the conclusion is not reasonable, or the result of the appraisal itself itself is contradictory, and should have judged whether the defendant was guilty (see Supreme Court Decision 2007Do1950, May 10, 2007). However, it points out that the court below did not make any deliberation and judgment on this matter.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)