[1] The measures to be taken by the court in a case where the original person making the original statement recognizes the actual authenticity on the interrogation protocol or the statement of the prosecutor only when it is prepared or made

[2] The case holding that the court below should judge the admissibility of evidence of the protocol by examining the protocol protocol or the protocol protocol prepared by the public prosecutor which rejected the admissibility of evidence of the whole protocol on the grounds that the protocol protocol or the protocol protocol prepared by the person making the original statement is not admitted as the actual authenticity

[1] In a case where the content of a protocol prepared by an investigative agency is recorded as stated by the person making the original statement at the time of preparation of the protocol, it is not reasonable to consider whether the content of the protocol is recorded as stated by the person making the original statement at the time of preparation of the protocol, or whether the content of the protocol is credibility or not. On the other hand, in a case where the person making the original statement at a preparatory hearing or during a public trial only concerning part of the protocol in which a suspect or a person other than a suspect makes a statement, if the prosecutor recognizes the actual authenticity, it shall be admitted as evidence only for the pertinent protocol as stated by the person making the original statement at the time of specific examination as to which some part of

[2] The case holding that the court below should judge the admissibility of evidence of the protocol by examining the protocol protocol or the protocol protocol prepared by the prosecutor which rejected the admissibility of evidence on the ground that the protocol protocol or the protocol of protocol prepared by the person making the original statement is not admitted as the actual authenticity

[1] Article 312 (1) of the Criminal Procedure Act / [2] Article 312 (1) of the Criminal Procedure Act

[1] Supreme Court Decision 2004Do8493 Decided March 10, 2005

Defendant

Prosecutor

Attorney Park Jong-soo

Seoul Central District Court Decision 2004No3787 Decided February 17, 2005

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

1. Summary of the judgment below

According to the reasoning of the judgment below, since part of the evidence consistent with the facts charged in this case stated by the original person who made the original statement to the effect that he did not state his statement in the court, it is impossible to recognize the admissibility of evidence of the protocol, or even if the admissibility of evidence is recognized, there is no credibility in each statement, etc., and since the following circumstances acknowledged by the record, Non-Indicted 2's statement in the court below is consistent with the defendant's statement, and Non-Indicted 2's statement in the court below was in the same manner as that of the defendant's statement, and Non-Indicted 1 was damaged as it was difficult for the defendant to communicate with his accomplice because he did not have handphones at the time, and Non-Indicted 2 was unable to easily know the fact that his accomplices were tight, and Non-Indicted 3, Non-Indicted 3, 4, 5, 6, and 7 were not present at the time of the crime, and there is no doubt or inconsistency with the part of the defendant's statement in the investigation agency as above.

2. Judgment of the Supreme Court

A. The main text of Article 312(1) of the Criminal Procedure Act provides that "a protocol in which a prosecutor makes a statement of a suspect or a person other than a suspect, and a protocol in which a prosecutor or a senior judicial police officer recorded the result of inspection of evidence may be admitted as evidence when it is admitted by the person making the original statement at a preparatory hearing or during a public trial." Here, the authenticity of formation refers to both the formal authenticity of the protocol, such as seal, signature and seal, and the actual authenticity that the content of the protocol is written as the person making the original statement." Thus, the authenticity of establishment in the text of the above Act does not stipulate any other method than "by the statement of the person making the original statement." As such, actual authenticity shall be recognized only by the person making the original statement. Any protocol in which a prosecutor makes a statement of a suspect or a person other than a suspect shall be admitted as evidence only when not only the formal authenticity is made by the person making the original statement at a preparatory hearing or during a public trial, but also when it is admitted to the actual authenticity (see Supreme Court en banc Decision 2002Do537, Dec. 16, 2002).

However, it is not reasonable to consider whether the content of the protocol is recorded as the statement made by the person making the original statement at the time of the preparation of the protocol, and the credibility of the relationship or its statement made as such does not exist. Meanwhile, in a case where a prosecutor only makes a part of the protocol in which a suspect or a person other than a suspect makes a statement and recognizes the actual authenticity of the protocol at the preparatory hearing or during the public trial, the court shall recognize the admissibility of evidence only for the part in the pertinent protocol which is recorded as the statement made by the person making the original statement after specifically examining what portion is stated and which part is recorded differently, and in other cases where the actual authenticity is denied (see Supreme Court Decision 2004Do8493, Mar. 10, 2005).

B. We cannot accept the court below’s decision on the following grounds, in light of the above legal principles, on the grounds that the court below’s decision that the actual authenticity is not recognized by the original person’s statement in court.

(1) The prosecutor’s statement concerning Nonindicted 8

On the prosecutor’s protocol of Nonindicted 8, the lower court determined that the actual authenticity was not recognized by Non-Indicted 8’s statement on the grounds that “The co-offenders, including the Defendant, including the prosecutor’s protocol, do not clearly state his or her identity, because he or she is not aware of who is the co-offenders.”

However, in the process of investigating Nonindicted 3 by reading the prosecutor’s statement, Nonindicted 8 stated that Nonindicted 9 and the Defendant were Nonindicted 10 side in relation to the Defendant in the prosecution investigation against Nonindicted 3, and that all of them were assaulted by Nonindicted 1, and that they were aware of who was assaulted by all the general public, and that the situation where the name was specifically given was given in the situation where the force of violence was committed from the general public at the time, they were carefully observed in the occupation even in the situation where the force of violence was broken, and that the police and the prosecutor’s office stated that the specific person of the offender in the police and the prosecutor’s office stated in the way that the police report the Handphone photograph of the offender by the method of specifying

Therefore, the above statements that did not clearly state the identity of the accomplice, including the defendant, at least because they do not know who is the defendant, do not seem to deny the substantial authenticity of the prosecutor's protocol. Thus, if the court below denies the substantial authenticity of the prosecutor's protocol with respect to the non-indicted 8, it should have deliberated on what part of the protocol is stated and what part of the protocol is not stated, and judged whether to recognize the admissibility of evidence by examining the purpose of denying the substantial authenticity of the prosecutor's protocol with respect to the non-indicted 8, and the court below should have judged that the admissibility of evidence of the whole protocol can not be recognized, and there is a violation of the rules of evidence by misunderstanding the legal principles on the admissibility of evidence and failing to exhaust all necessary deliberations.

(2) Examination of Nonindicted 3’s suspect by prosecutor

The lower court determined that Nonindicted 3’s protocol of interrogation of Nonindicted 3 by prosecution is inadmissible, on the ground that it stated in the first instance court that “No statement was made at the site of the case at the time of investigation, and the protocol was signed and sealed without reading it because the investigator did not have time.”

However, Nonindicted 3 made a statement to the effect that the protocol of interrogation of himself/herself stated in the prosecutor's office is consistent with the purpose of his/her statement and that it added a separate content to him/her, and in particular, at the time of his/her trial, Nonindicted 3 made a statement to the effect that "at the time of his/her trial on himself/herself, he/she does not have any other sound."

Therefore, the court below determined that the whole of the protocol should not be admissible, even though it should clearly specify which part of the protocol of examination of Nonindicted 3's prosecutor's interrogation should have been added, and it should not be admitted as evidence. In so doing, the court below erred by misapprehending the legal principles on admissibility of evidence and failing to exhaust all necessary deliberations, thereby violating the rules of evidence.

(3) The Prosecutor’s interrogation protocol on Nonindicted 4

In the first instance court, Nonindicted 4 made a statement that he/she made such statement as to the suspect interrogation protocol of his/her prosecutor, and made a statement that “In spite of Non-Indicted 4 made a statement that he/she did not accurately see whether he/she was present at the scene of the case at the time of the prosecutor’s statement, he/she would not conform to the accomplice’s statement that he/she was arrested and investigated before he/she made.” Thus, Nonindicted 4 acknowledged the substantial authenticity of the suspect interrogation protocol by the prosecutor, and there is room to view that Nonindicted 4 only contests the credibility of his/her statement in the first instance court.

Nevertheless, even though Non-Indicted 4 stated that he was unable to accurately examine the site of the case at the time of the prosecutor's statement, the investigator prepared the protocol according to his statement while he would not fit the accomplice's statement that was arrested and investigated before the time of the statement of the prosecutor's office." The statement alone denied the admissibility of the whole protocol of interrogation of the prosecutor's suspect as to the next day. In so doing, there is an error of law by misapprehending the legal principles on admissibility of evidence and failing to exhaust all necessary deliberations, which is contrary

(4) The Prosecutor’s interrogation protocol on Nonindicted 5

In the first instance court, Nonindicted 5 stated in the court of first instance that “ Nonindicted 5 made a statement that he was unaware of his accomplices, including the Defendant, at the time of the prosecutor’s statement, and did not make any statement after obtaining the name of the accomplices, including the Defendant.” The lower court denied the admissibility of the protocol of interrogation of Nonindicted 5 on the basis of the aforementioned statement made by Nonindicted 5.

However, at the time, Nonindicted 5 read the protocol, signed and sealed it. Since the contents of the protocol are written, the lower court denied admissibility of evidence for the entire protocol, despite that it should have denied admissibility of evidence for only the portion that was not recognized as having been actually authentic by examining which part of the protocol of interrogation of Nonindicted 5, which was written by Nonindicted 5, and which part of the protocol was written by Nonindicted 5, and which part of the protocol was written by him, was not written by himself. In so doing, it erred by misapprehending the legal doctrine on admissibility of evidence and failing to exhaust all necessary deliberations, thereby violating the rules of evidence.

(5) Prosecution interrogation protocol regarding Nonindicted 7

In the first instance court, Nonindicted 7 stated in the court of first instance that “There was no fact that only talks about himself at the time when the prosecutor’s statement was made and the Defendant was specifically designated as to him,” and the lower court denied the admissibility of the whole protocol of interrogation of Nonindicted 7 by the prosecution as to Nonindicted 7 on the ground of the above statement.

However, in the court of first instance, the non-indicted 7 made a statement in the court of first instance to the effect that "the non-indicted 7 was admitted as it was made by the judgment of the non-indicted 3 and the non-indicted 9, and therefore, it is thought that it would be said that it would have been made because of that part." The court below made a statement to the effect that the actual authenticity is acknowledged with respect to a part of the protocol. Therefore, the court below denied admissibility with respect to which part of the protocol was written as it stated and which part was not written as it stated, although it should have denied admissibility with respect to which part was not written as it stated, the court below denied admissibility with respect to the whole protocol, which is erroneous in the misapprehension of legal principles as to admissibility of evidence and failing

C. Furthermore, it is difficult for the court below to accept the third time trial records (hereinafter referred to as the "trial trial records of this case") of the Seoul District Court (Case Number omitted) case against Non-Indicted 3 and Non-Indicted 6, which correspond to the facts charged, and the rejection of the credibility of the decision against the accomplices for the following reasons.

In light of the contents of the trial records of this case, Nonindicted 3 did not simply state that “I will not do so,” at the time of the examination of the defense counsel, but did not state that “I would like to make a relatively detailed statement about the present site situation.” However, since Nonindicted 3 had already led to the confession of the facts charged against himself at the time when I would make such a statement, it is difficult to expect that Non-Indicted 3, who did not participate in the case especially in the case, did not expect to be involved in the crime, even though the court below pointed out that it is difficult to expect that Non-Indicted 3, who appealed in the first instance court of this case, made a detailed statement about the present site situation at the time when I would like to reverse the above statement, and thus, the court below should have carefully judged the credibility of Non-Indicted 3’s previous statement in the court of this case and the statement in the first instance court of this case at the time when I would like to consider the evidence related to the present case and the change of the defendant’s lawsuit.

In particular, the court below rejected the credibility of Non-Indicted 3’s statement that “In the situation where it is difficult to clearly distinguish the position to make a confession as Non-Indicted 3 and several accomplices who participated in the crime from what actually acted at the time of the crime, it is difficult to clearly distinguish them, the court below determined that the above judgment of the court below is erroneous by misapprehending the facts contrary to the rules of evidence in light of the following: “When some of the accomplices of this case including Non-Indicted 3, including Non-Indicted 3, in the oil station located in Yneneeung immediately after the crime, the defendant was presumed to have been on the job and the defendant could not have made a statement as above.” However, according to the records, it is clear that Non-Indicted 3 was arrested immediately near the site of this case and did not go to the gas station located in Yeung immediately after the

In addition, according to the records, Nonindicted Party 1 did not appear at the site at the time when Nonindicted Party 1 sent Nonindicted Party 1’s part of Nonindicted Party 11 to the hospital, and Nonindicted Party 7 recognized the fact that Nonindicted Party 7 sent Nonindicted Party 11 to the hospital, and Nonindicted Party 3 had a telephone call after the escape of Nonindicted Party 1 while Nonindicted Party 3 had a telephone call after the escape, and then received a contact thereafter, and that it started in the future.

Nevertheless, Nonindicted 3, in the first instance court, stated that he reversed the previous statement that he saw the Defendant in front of Kim Han-sik's branch in the court of first instance, and that he made a false statement in the mind that he wanted to get a trial as soon as the trial was postponed at the time. However, such statement is contrary to the previous statement in the court of first instance, and it is difficult to believe that it is true even in light of the various circumstances shown in the record at the time.

Furthermore, according to the records, Nonindicted Party 1’s marking the knife, not the knife, with Nonindicted Party 3 and Nonindicted Party 9, before the fliferies, could have known the fact that it was from the knife with Nonindicted Party 3 and Nonindicted Party 9. Even if considering that Nonindicted Party 1 could have mistaken the knife with the knife, it is difficult to believe that the Defendant had argued that Nonindicted Party 1 had fleded Nonindicted Party 11 before the knife knife in the knife store, and that Nonindicted Party 3 had taken the knife with the knife after the passage of a considerable time after the escape of the knife Kim Flife's knife after the passage of flight. Rather, it is reasonable to view that Defendant 1 had the knife with Nonindicted Party 1 before the knife knife knife with the knife.

However, according to the records, it can be known that, on the date of pleading of the trial against himself, Nonindicted 3 stated in the presiding judge that “whether or not Nonindicted 1 was at the time of the arrival of the judgment with the Gu,” Nonindicted 3 made a statement in relation to the question of the presiding judge that “The time when Nonindicted 2, Nonindicted 4, Nonindicted 7, and Nonindicted 9 was the same,” and that the name of the defendant was omitted. However, this alone alone is insufficient to consider it as a material to reject the previous statement that specifically

As such, the statement made by Nonindicted 3 in the first instance court is difficult to believe in light of the various circumstances indicated in the records of this case and the statement made by Nonindicted 3 recorded in the protocol of this case. Rather, despite the fact that Nonindicted 3’s statement recorded in the protocol of this case is more reliable, the lower court rejected the credibility of Nonindicted 3’s statement recorded in the protocol of this case on the grounds as stated in its reasoning. In so doing, it erred by misapprehending the facts contrary to the rules of evidence.

On the other hand, the court below determined that the decision on the accomplice of this case was based on the statement of the accomplice who is difficult to believe at least on the part of the defendant's accomplice, and that the defendant cannot be found to have used violence against the accomplice of this case jointly with the accomplice.

However, upon examining the judgment on the accomplices of this case filed in the record, most of the accomplices of this case, including Nonindicted 3, etc., were aware of the fact that they led to the confession of the facts of crime at the time of their criminal trial. Thus, the court below should have examined the accomplice's testimony at the time of conducting the investigation of evidence on the criminal records of the case, etc. and judged the credibility thereof with careful caution. However, the court below rejected the decision on the basis of only the statement in the first instance court's first instance court which appears to be highly likely to make a false statement on the relation with the defendant arrested after the lapse of two years since the occurrence of the case. This is deemed to have failed

D. Meanwhile, according to the Defendant’s statement on the day of the instant crime, the police stated that Seongbuk-gu Seoul East-gu, where Nonindicted 2 et al. al. met at the time of the instant crime, that Nonindicted 2 et al. was at a (trade name omitted), but the prosecutor denied the escape of Nonindicted 2 and Nonindicted 12 before the scene of the instant crime, while Nonindicted 2 and Nonindicted 12 went through telephone calls, but they attempted to go in a knife, and they were hidden for one hour at the nearby health club. In addition, it is difficult to view Nonindicted 9’s statement that Nonindicted 2 and Nonindicted 1 got out of knife at the time of the instant crime, and that Nonindicted 1 and Nonindicted 12 knew about the escape of the Defendant at the scene of the instant crime, including the escape of Nonindicted 1 and the escape of the Defendant at the scene of the instant crime, and that it was difficult to say that the Defendant’s statement was made at the time of the instant crime.

E. Ultimately, the court below should have deliberated on the parts where the actual authenticity of the protocol prepared by the investigative agency is recognized and judged the admissibility of the protocol, and after examining the co-offenders' legal statements at the time of conducting the investigation of evidence on the records of related criminal cases, etc., the court below rejected the evidence conforming to the facts charged on the basis of only the testimony of the court of first instance in this case where it is difficult to believe that the co-offenders and the defendant should have judged the credibility of the statement. Thus, the court below erred by misapprehending the legal principles on the admissibility of evidence, failing to exhaust all necessary deliberations, or misunderstanding facts contrary to the rules of evidence, and it is obvious that this affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

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 Yong-dam (Presiding Justice)