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The appeal is dismissed.
Reasons
The grounds of appeal are examined.
1. Examining the evidence duly adopted by the first instance court, which maintained the reasoning of the judgment below, in light of the evidence (excluding the police and prosecutor’s protocol against AU as set forth in paragraph (2) below), the court below was just in finding the Defendant guilty of the facts charged of this case on the grounds as stated in its holding, and there was no error of law of free evaluation of evidence contrary
2.(a)
In order to use the protocol under Article 312 of the Criminal Procedure Act or the statement, documents, etc. under Article 313 of the same Act as evidence pursuant to Article 314 of the same Act, two requirements must be satisfied that a person who needs to make a statement at a preparatory hearing or on the trial date is unable to make a statement due to death, disease, foreign residence, unknown whereabouts, or any other similar cause, and that the statement or preparation was made in a particularly reliable state.
The requirements under Article 314 of the Criminal Procedure Act, which provide for the exception of direct care and hearsay rule, must be strictly examined. The prosecutor bears the burden of proving the requirements for the admissibility of hearsay evidence. Thus, in order to constitute a case where a witness is missing or is unable to make a statement due to any other similar cause, the prosecutor must prove the circumstance that the witness was unable to appear in court even though he/she made possible and sufficient efforts for the attendance of the witness and made full efforts
(see, e.g., Supreme Court Decision 2013Do1435, Apr. 11, 2013). B.
According to the records, ① the first instance court adopted AU as a witness since the defendant did not agree to the police of the AU and the written statement of the prosecutor's office as evidence, ② the first instance court served the witness summons to the address of the AU reported by the prosecutor, but was impossible to serve as a closed door absence twice, ③ The first instance court has jurisdiction over the domicile of the AU on March 18, 2014.