[1] The admissibility of secondary evidence obtained based on the evidence collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act and the criteria for its determination

[2] Specific extenuating circumstances to acknowledge the admissibility of secondary evidence

[3] The case holding that the testimony of the defendant and the victim can be used as evidence of conviction in the sense that the testimony of the defendant and the victim was made voluntarily in the open court, among the secondary evidence based on the confession made voluntarily by the defendant without notifying the right to refuse to make statements

[1] Article 308-2 of the Criminal Procedure Act provides that “Evidence obtained without following the due process shall not be admitted as evidence.” In principle, evidence collected by an investigative agency without following the procedure prescribed by the Constitution and the Criminal Procedure Act, as well as secondary evidence obtained based on the said procedure, shall not be admitted as evidence for conviction. However, in exceptional cases where an investigative agency’s violation of the procedure does not constitute a violation of the substantive substance of due process, but rather, the Constitution and the Criminal Procedure Act establish a procedural provision regarding criminal procedure and promote harmony between the principle of due process and substantive truth and trying to realize justice in criminal justice, the court may use such evidence as evidence for conviction. Therefore, when a court finally determines whether to grant admissibility of secondary evidence, the court should first consider all circumstances related to the collection of primary evidence without following the procedure provision, namely, the purport and degree of the violation, the possibility of avoiding the violation, the degree of infringement of the right or legal interests to be protected, the relationship between the defendant and the procedure and the evidence collection, and the relationship between the primary investigation agency and the evidence collection.

[2] In a specific case, the determination of admissibility of the secondary evidence should be made by comprehensively and comprehensively taking into account all the circumstances into account. For instance, the failure to notify the right to refuse to make statements is merely the acceptance of the investigative agency, but not the intended and technical evidence to lead the confession of the suspect, and the investigation procedure was lawful, such as the notification of the right to refuse to make statements and correction thereof, etc. In the subsequent examination, the fact that the defendant detained after the initial confession was released or the defendant had been given sufficient assistance from the defense counsel again made a confession of the same contents voluntarily even after a considerable period of time, the circumstance that other independent third party acts or materials, etc. were the basis for collecting secondary evidence, such as physical evidence or witness testimony, and the circumstance that the witness appeared and testified voluntarily after being summoned in accordance with the procedure stipulated in the Criminal Procedure Act, etc. is part of the circumstances that recognize admissibility of the secondary evidence.

[3] The case holding that in a case where the court of first instance collected a statement about the defendant's voluntary confession and the injured party's fact of injury by obtaining the right to refuse to make a statement without notifying the defendant who was arrested as an offender in robbery of the right to refuse to make a statement, by securing the statement and evidence on the crime of robbery and by notifying the defendant of the right to refuse to make a statement, the confession of the defendant in the court of first instance is made at will after 40 days from the first confession made without being notified of the right to refuse to make a statement, and the victim's statement is made at will in the open court after being given sufficient assistance of counsel after being given 40 days from the first confession made without being informed of the right to refuse to make a statement, and thus, it constitutes secondary evidence that can be used as evidence

[1] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 215, 307, and 308-2 of the Criminal Procedure Act / [2] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 215 and 307 of the Criminal Procedure Act / [3] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 215 and 307 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2007Do3061 Decided November 15, 2007 (Gong2007Ha, 1974)

Defendant

Defendant

Attorney Park Sung-hwan et al.

Seoul High Court Decision 2008No1954 decided Nov. 20, 2008

The appeal shall be dismissed. One hundred days out of the number of detention days after the appeal shall be included in the original sentence.

The defendant and defense counsel's grounds of appeal are also examined.

1. On the first ground for appeal

A. Article 308-2 of the Criminal Procedure Act provides that “Any evidence collected in violation of the due process shall not be admitted as evidence.” In principle, not only the evidence collected by the investigative agency but also the secondary evidence obtained on the basis thereof shall not be admitted as evidence for conviction.

However, in exceptional cases where a violation of the procedure by an investigative agency does not constitute a violation of the substantive contents of due process, and rather, the Constitution and the Criminal Procedure Act to exclude the admissibility of evidence does not constitute a violation of the substantive contents of due process. Rather, the Constitution and the Criminal Procedure Act provide a procedural provision regarding criminal procedure to harmonize the principle of due process and substantive truth-finding and thereby, thereby creating a result contrary to the intent of realizing criminal justice, the court may use the evidence as evidence for conviction. Therefore, when a court finally determines the admissibility of evidence of secondary evidence, it should first consider all circumstances related to the collection of primary evidence that did not follow the procedure, namely, the purport and content and degree of the procedural provision, namely, the specific details and possibility of the violation, the nature of the right to protect the procedural provision or legal interest, the degree of relationship between the defendant and the collection of evidence, and the perception and intent of the investigative agency, and further, the court should consider the causal relationship or dilution based on the primary evidence to all further specific circumstances that occurred during the process of collecting secondary evidence based on the primary evidence (see Supreme Court en banc Decision 201607Do1707.

B. The second evidence collected by an investigative agency based on a confession of a suspect that was voluntarily made without notifying the right to refuse to make a statement, for example, repeated confession, physical evidence, or witness testimony, etc., should also be determined in accordance with the above legal doctrine. In a specific case, whether to recognize the admissibility of the second evidence should be determined by comprehensively and comprehensively considering all the circumstances. For instance, the failure to notify the right to refuse to make a statement is only the acceptance of the investigative agency, but is not used as a means of securing an intentional and technical evidence to lead the confession of the suspect. In the subsequent examination, the fact that the investigation procedure was lawful, such as notification of the right to refuse a statement and correction thereof, was being made lawfully. The circumstance that the defendant detained after the first confession was released or obtained sufficient assistance from the defense counsel, and the first confession is also an independent third party’s act or material, etc., other than the first confession, and the second witness’s act or material evidence collection basis for witness testimony, etc., and the circumstances that the witness appeared in the procedure of the Criminal Procedure Act and voluntarily acknowledged evidence.

C. According to the judgment of the court below and the evidence duly adopted by the court below, the defendant was arrested as an act of robbery against the non-indicted 2 on March 12, 2008 by the defendant on the 4th day after being present at the court below's 0th day after being present at the court below's 4th day, and the defendant was present at the court below's 0th day after being present at the court below's 4th day after being asked at the court below's 0th day after being informed of the right to refuse to testify, and the defendant was present at the 4th day after being present at the court below's 0th day after being asked at the 4th day after being present at the court below's 0th day after being present at the court below's 0th day after being asked at the 4th day after being present at the court below's 0th day after being present at the court below's 0th day after being asked at the court's 1st day after being present at the court's 0th day.

Examining these circumstances in light of the legal principles as seen earlier, although confession in the court of first instance at the court of first instance is the same as the first confession made by the defendant without being notified of the right to refuse to make a statement, all of the circumstances as seen earlier prior to the confession in the court of first instance until the confession in the court of first instance is brought about, in particular, the investigative agency was notified of the right to refuse to make a statement immediately after several hours after the first confession, and all of the notification of the right to refuse to make a statement was lawfully made at the time of interrogation. A confession in the court of first instance at the court of first instance after the lapse of about 40 days from the first confession and being notified of the right to refuse to make a statement after being given sufficient assistance of counsel in the open court after the first confession, it constitutes a case where it can be used as evidence for conviction.

Furthermore, in light of all the circumstances as seen earlier prior to Nonindicted 4’s statement in the court of original instance and the circumstances such as Nonindicted 4’s voluntary appearance at the court at the time when seven months or more have elapsed since the date of crime as the victim and warning him/her of the punishment for perjury, and his/her personal experience, it also constitutes a case where it can be used as evidence for conviction.

In the same purport, the decision of the court below that recognized the admissibility of confession in the court of first instance and the statement made by Nonindicted 4 in the court of first instance is just, and it is not erroneous in the misapprehension of legal principles as to the exclusion of illegally collected evidence, contrary to the allegations in the grounds of appeal.

2. On the second ground for appeal

In full view of the various circumstances revealed in the record, the court below judged that the defendant did not have the ability to discern things or make decisions due to drinking at the time of the crime against the victim non-indicted 2. In light of the records, it is proper to take such measures by the court below, and there is no error of law by misapprehending the legal principles as to mental disorder as

3. As to the remaining grounds of appeal

The remainder of the grounds of appeal are purporting to mislead the selection of evidence and fact-finding which belong to the exclusive jurisdiction of the court below, or in this case where the defendant was sentenced to imprisonment for less than 10 years, the amount of punishment is inappropriate and all are not legitimate grounds of appeal.

4. Conclusion

Therefore, the appeal shall be dismissed and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cha Han-sung (Presiding Justice)