[1] Probative value of electronic media, such as a recording tape and file that recorded a conversation

[2] In a case where the defendant case was against the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (GongA) and the representative of the victim land readjustment project association Gap recorded a conversation with the defendant in the digital tape recorder and copied the original of the recorded file stored in the computer, deleted the original of the digital tape recorder, and then repeatedly recorded the recording, the case holding that the admissibility of evidence is admitted

[1] In a case where the court conducted verification as to whether the contents of the recording document and the contents of the recording tape are identical to those of the document written in the facts charged, the recording recording is itself a conversation recorded in the recording tape. Of these, the defendant's statement is different from those of the defendant's statement in addition to the provisions of Articles 311 and 312 of the Criminal Procedure Act, so long as the defendant did not agree that the recording tape can be admitted as evidence, it should be proved that the defendant's statement recorded in the recording tape was recorded as stated by the other party's statement, which is the originator at a preparatory hearing or during a public trial, as well as under particularly reliable circumstances, in order to use the recording tape as evidence, in order to use the defendant's statement as evidence, the contents of the recording tape's statement made in the recording tape should be proved as being recorded in a particularly reliable state. In addition, electronic media, such as the file of the recording of the contents of the conversation, considering the intent of the tapeer or any specific technology, it should be proved as the original without copying or copying the contents of the original.

[2] The case affirming the admissibility of a recording file and a recording record on the ground that in case where: (a) a case of violation of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 11304, Feb. 10, 2012); (b) a representative of a victim land readjustment project association Gap recorded a conversation with the defendant and copied the original of the recording file stored in the computer; and (c) deleted the original of the digital recording device; and (d) recorded the recording file repeatedly in the process of rerecording the conversations; and (b) the admissibility of the recording file is at issue, in light of all the circumstances, the copy of the recording file is not subject to the application of Article 14 of the Protection of Communications Secrets Act that prohibits infringement of other persons’ conversation, and it is recognized that the recording file was made in a particularly reliable state in light of the background, place, content, relationship between the conversations, etc. of the recording; and (c) it is recognized that the statement was made in a particularly reliable state.

[1] Articles 311, 312, and 313(1) of the Criminal Procedure Act / [2] Article 350(1) of the Criminal Act; Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012); Article 14 of the Protection of Communications Secrets Act; Article 313(1) of the Criminal Procedure Act

[1] Supreme Court Decision 2001Do3106 Decided October 9, 2001 (Gong2001Ha, 2496) Supreme Court Decision 2004Do1449 Decided May 27, 2004 (Gong2006Sang, 2006Sang, 207) Supreme Court Decision 2006Do8869 Decided March 15, 2007 (Gong2007Sang, 585) Supreme Court Decision 2007Do10804 Decided March 13, 2008 (Gong2008Sang, 549) Supreme Court Decision 208Do91414 Decided December 24, 2008

Defendant

Defendant

Attorney Han Man-hwan et al.

Seoul High Court Decision 2012No747 decided June 7, 2012

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

In a case where a court confirms that a recording document concerning conversations between the defendant and the other party submitted as evidence of facts charged and conducted verification as to whether the contents of the recording document and the contents of the recording tape are identical, evidence is the content of the recording tape itself. Among them, the contents of the defendant's statement are different from those of the defendant's statement in addition to Articles 311 and 312 of the Criminal Procedure Act, so long as the defendant does not agree that the recording tape can be used as evidence, it shall be proved that the contents of the defendant's statement recorded in the recording tape have been recorded in a preparatory hearing or during a public trial as evidence pursuant to the proviso of Article 313 (1) of the Criminal Procedure Act, and further, it shall be recognized that the statement was made in a particularly reliable condition (see Supreme Court Decisions 200Do3106, Oct. 9, 201; 200Do41284, May 27, 2004; 200Do4209, Apr. 28, 2009

According to the evidence duly admitted and examined, ① the victim’s representative: (a) copied the original of the recording file stored in the digital recording machine to his office after recording the conversations with the Defendant; (b) deleted the original of the digital recording machine; and (c) repeated the process of rerecording the conversations with the Defendant; (c) the Nonindicted Party stated in the prosecutor’s office and the court of first instance that it copied the original of the recording file directly recorded in the computer as it is; and (c) the Defendant also stated in the prosecutor’s office and the court of first instance that it is identical between the above recording file and the relevant recording file; and (d) the Defendant stated that the recording file was recorded in the relevant record as well as the content of the recording file’s statement to the effect that the recording file was written in accordance with the content of the recording file; (d) the Prosecutor’s office of the Supreme Prosecutors’ Office of Science Investigation to discover the digital recording file and the copy of the digital recording file widely used in the digital recording file as a result of analysis of the fact that it was recorded in the digital recording file.

Examining these facts in light of the legal principles as seen earlier, the copy of the recording file of this case, which was recorded by the Nonindicted Party, the representative of the victim, did not have recorded the conversation between the Defendant and the others, is not subject to the application of Article 14 of the Protection of Communications Secrets Act that prescribes the prohibition of infringing on secrets of others (see Supreme Court Decision 2001Do3106, Oct. 9, 2001). The copy of the recording file is recognized to have been recorded as being reproduced as it was without any artificial adaptation, such as editing in the duplication process, and recorded as stated by the conversationr. Furthermore, in light of the background of the recording, place, content, relationship between the conversation and the conversation, etc., it is recognized that the statement was made under a particularly reliable condition, and thus, the copy of the recording file and the relevant transcript can be used

In the same purport, the court below is just in recognizing the admissibility of evidence of the copy of the recording file of this case and the relevant recording record, and there is no error in the misapprehension of legal principles as to admissibility.

2. As to the grounds of appeal Nos. 2 through 4

Intimidation as a means of a crime of threat refers to the threat of harm and injury that is likely to be hot enough to restrict the freedom of decision-making or to obstruct the freedom of decision-making. It is sufficient that the threat of harm and injury does not necessarily have to be made by a clear method, but rather has to have the language or dynamics, the other party be aware that it would cause harm and injury. In addition, even if it is not directly, it may be indirectly made through a third party other than the person under threat. If an actor demands the delivery of property using an illegal consolation with his occupation and status, and if the other party fails to comply with such demand, the threat of harm and injury may also be made even in cases where the perpetrator demands the delivery of property using the illegal above age and the other party’s risk of causing an unreasonable disadvantage (see, e.g., Supreme Court Decisions 2001Do7095, Dec. 10, 2002; 2003Do709, May 13, 2003).

According to the reasoning of the judgment below, the court below acknowledged facts based on the evidence duly adopted and investigated, and found the defendant guilty of the facts charged in this case on the ground that the defendant, as the head of ○○ Metropolitan City △△△△△△, filed the lawsuit in this case where there is little possibility of winning the agreement on the construction essential for the completion of a land readjustment project, and threatened the non-indicted, the representative of the victim, to the effect that the agreement on the completion of the project would not proceed without complying with the defendant's request if the project is not completed properly.

In light of the aforementioned legal principles and records, the above determination by the court below is acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to the threat of harm and injury in the crime of extortion and the spread or causal relation

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)