[1] The meaning of "a particularly reliable state" under Article 312 (4) of the Criminal Procedure Act and the burden of proof (=a prosecutor) and the degree of proof (=free proof)

[2] In a case where it is probable that the prosecutor conducted a leading question not permitted under the rules on criminal procedure while conducting a leading question to the witness Gap, etc. in the process of witness examination at the court of first instance, but the presiding judge notified the results of witness examination, etc. by each protocol of trial on the next trial, but the defendant and his defense counsel stated that "the fact that he will change and raise no objection" was cured, the case holding that the main question was cured

[3] Standard for determining whether a statement containing another person’s statement constitutes original evidence or hearsay evidence

[1] In Article 312(4) of the Criminal Procedure Act, “a particularly reliable state” refers to a situation in which there is little room for false intervention in the preparation of a statement or protocol, and specific and external circumstances exist to guarantee the credibility or voluntariness of the content of the statement. In addition, such “a particularly reliable state” falls under the requirement for admissibility of evidence, and thus the prosecutor must specifically assert and prove the existence thereof, but it is sufficient for the prosecutor to freely prove it without strict proof, since it is related to facts in litigation.

[2] In a case where it is probable that the prosecutor conducted a leading question to the witness Gap, etc. who was not permitted under the rules on criminal procedure while conducting the witness examination in the first instance trial, but the presiding judge notified the results, etc. of the witness examination by each protocol on the next trial date, but stated that "the defendant and his defense counsel did not have any point to change," the case holding that the defects of the main examination conducted by the leading question have been cured by clarifying the intent to waive the right to ask questions

[3] The statement containing another person’s statement is determined as hearsay evidence in relation to the fact requiring proof. In a case where a fact which is the contents of the original statement is a fact requiring proof, said statement is hearsay evidence, or where the existence of the original statement itself is a fact requiring proof, said statement is not original evidence and it is not hearsay evidence.

[1] Articles 308 and 312(4) of the Criminal Procedure Act / [2] Article 307 of the Criminal Procedure Act, Article 75(2) of the Regulation on Criminal Procedure / [3] Articles 311, 312, and 313(1) of the Criminal Procedure Act

[1] Supreme Court Decision 200Do1743 Decided September 4, 2001 (Gong2001Ha, 2203) Supreme Court Decision 2004Do3619 Decided May 25, 2006 (Gong2006Ha, 1202) Supreme Court Decision 2006Do3922 Decided September 28, 2006 / [3] Supreme Court Decision 2008Do5347 Decided September 25, 2008, Supreme Court Decision 2008Do8007 Decided November 13, 2008

Defendant 1 and one other

Defendants

Attorney Oap-sik et al.

Applicant for Compensation

Seoul High Court Decision 2010No2144, 201No2330, 2584 decided February 10, 2012

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief not timely filed by Defendant 1).

1. As to Defendant 1’s assertion on admissibility of evidence

A. Admissibility of evidence of the witness statement

Article 312(4) of the Criminal Procedure Act provides that "a protocol in which a prosecutor or senior judicial police officer recorded a statement by a person other than a defendant is prepared in accordance with lawful procedures and methods, and such protocol is recorded the same as the statement made before a prosecutor or senior judicial police officer, shall be admissible as evidence, if it is proved by a statement at the preparatory hearing or trial date of the original person or by any other objective method, and the defendant or defense counsel could have examined the original person concerning the contents of the protocol at the preparatory hearing or trial date: Provided, That it is proved that the statement recorded in the protocol was made in a particularly reliable state," in this context, means that there is little room for false entry into the contents of the statement or protocol, and there is a specific and external circumstance that guarantees the credibility or voluntariness of the contents of the statement (see, e.g., Supreme Court Decision 2006Do3922, Sep. 28, 2006). Such "a particularly reliable state" falls under the requirements for admissibility of evidence, and thus the prosecutor must assert the existence of the protocol and evidence.

According to the records, Defendant 1 consented to the police and the prosecutor's statement of Nonindicted Party 1, etc. as evidence, and Nonindicted Party 1, etc. admitted the authenticity of the statement in the court of first instance, and made a statement to the same effect as a substitution of the contents of the statement in the investigation agency. The first instance court adopted it as evidence on the premise that there is little room for any falsity in preparing the contents of the statement in the investigation agency of Nonindicted Party 1, etc., or that the credibility or voluntariness of the contents of the statement is recognized. The first instance court

Examining various circumstances indicated in the record, including the process and circumstances of Nonindicted 1, etc.’s statement in an investigative agency, and the process and contents thereof, in light of the aforementioned legal principles, the lower court’s aforementioned determination is just and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there is no error

B. Admissibility of admissibility of the complaint

Article 313(1) of the Criminal Procedure Act provides that "a document prepared by a defendant or any person other than the defendant, in addition to the provisions of the preceding two Articles, or a document which contains a written statement or a statement prepared by him or a person other than the defendant, or a signature or a seal thereon, may be admissible as evidence, if it is proved to be genuine by the maker or the person who made the statement at a preparatory hearing or during a public trial, and the written complaint prepared by the non-indicted 2, 3 and 4, which corresponds to the documents prescribed in the preceding two Articles, and all of them are admissible as evidence in the first instance court, since it is admitted that each

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles regarding admissibility.

C. Admissibility of evidence of testimony following the leading question

Article 75(2) of the Regulation on Criminal Procedure provides that, in the main examination, a leading question shall not be made unless there are any exceptional reasons under any subparagraph of the proviso of Article 75(2) of the Regulation on Criminal Procedure, such as the witness's appearance of enemy or counter-influence

According to the records, there is room to view that the prosecutor conducted the main interrogation of Nonindicted 5, etc. in the course of the examination of the witness by the court of first instance, and the leading question was not allowed under the rules on criminal procedure, such as questioning of Nonindicted 5, etc.’s response to the desired response by Defendant 1 as “at the time of introduction of Defendant 1 as the head of the Saemaul Movement Federation (hereinafter omitted).”

However, according to the records, the first instance court prepared a witness examination of Nonindicted 5, etc., and prepared each protocol of trial, and thereafter, the presiding judge notified the results of witness examination, etc. in accordance with each of the above protocol of trial, and the defendant 1 and his defense counsel made a statement that "it does not have any point to change and objection." As such, by clearly stating the intent to waive the right to ask questions, it can be said that the defects of the main examination was cured by the leading question (see Supreme Court Decision 2009Do9344, Jan. 14, 2010, etc.). Thus, this part of the testimony cannot be deemed illegal evidence. The grounds for appeal disputing this point are without merit.

D. The defendant's assertion regarding admissibility of evidence of the testimony containing the defendant's statement

Whether a statement made with another person’s statement constitutes hearsay evidence is determined in relation to the facts requiring proof. In a case where a fact that is the contents of the original statement is a fact requiring proof, said statement is considered hearsay evidence or, in a case where the existence of the original statement itself is a fact requiring proof, it is not a original evidence or hearsay evidence (see Supreme Court Decision 2008Do8007, Nov. 13, 2008, etc.).

According to the records, in the court of first instance, Non-Indicted 1 stated in the court of first instance that "the land for 88 gymnasiums was purchased at the officially announced price, and the facility with KBS would be completed within two months, and Non-Indicted 2 and 6 made a statement with the content of the defendant's statement. Since the existence of the original statement itself is an essential fact in each part of this part of fraud or the violation of the Attorney-at-Law Act, the statement that Non-Indicted 1 et al. who directly experienced the original statement from the defendant constitutes not hearsay evidence but original evidence. This part of the grounds of appeal on a different premise cannot be accepted.

2. The Act on the Aggravated Punishment, etc. of Specific Economic Crimes in relation to Defendant 1’s “8 gymnas site”

As to the violation (Fraud) of the Special Act (hereinafter “Special Act”).

In full view of the adopted evidence, the lower court found Defendant 1 guilty of this part of the charges on the grounds as stated in its reasoning, on the following grounds: (a) acknowledged that Defendant 1 was not delegated by the Saemaul Movement Association, an incorporated association, the Korea Federation (hereinafter referred to as the “Federation”) with the authority to sell the “88 Sports Hall site” owned by the Federation; and (b) there was no specific consultation with the Korea Broadcasting System, which is the holder of superficies in the site for 88 Sports Hall site, regarding the relocation of facilities within the said site; (c) although there was no specific consultation with the Korea Broadcasting System

Examining the reasoning of the judgment below in comparison with records, the above judgment of the court below is just, and contrary to what is alleged in the grounds of appeal, there is no violation of law of free evaluation of evidence against logical and empirical rules.

3. As to Defendant 1’s violation of the Special Economic Crimes Act (Fraud) against Nonindicted 2 and the violation of the Attorney-at-Law Act

In full view of the circumstances stated in its holding, the lower court found Defendant 1 guilty of all charges on this part of the facts charged on the ground that Defendant 1 did not receive the payment from the victim Nonindicted 2 on the premise that Defendant 1 did not receive the payment from the victim Nonindicted 2, but did not receive the payment from the Minister and other high-ranking personnel affairs, and received the money under the pretext of solicitation. In fact, the lower court did not have any intention or ability to reduce Nonindicted 2’s tax through the cost for high-ranking personnel affairs.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to what is alleged in the grounds of appeal, there is no violation of the principle of free evaluation of evidence against logical and empirical rules.

Of the grounds of appeal, there was no separate proceeding with respect to the documents, such as the cash custody certificate, attached to the complaint, and since some of the statements made by the defendant 1 and the investigation agencies of the defendant 2, which were not adopted as evidence at the court of first instance, were made based on the contents of the recording that was not admitted as evidence at the court of first instance, all of them cannot be viewed as a legitimate ground of appeal as a assertion that was brought before the court of final appeal. Furthermore, according to the records, the records acknowledged that the documents attached to the above complaint were presented as a witness at the 29th trial of the court of first instance and the authenticity was established as to the documents attached to the above complaint. Since the defendant 1 recognized the authenticity of the statement made by the investigation agency related to the conversation in the above record, all of the statements made by the non-indicted 2 are admissible, and they are merely the statements made by the non-indicted 2 in the court of first instance,

4. As to the embezzlement against Defendant 1’s non-indicted 7

In full view of the adopted evidence, the lower court found Defendant 1 guilty of this part of the facts charged on the ground that Defendant 1 borrowed KRW 300 million from Nonindicted 7 to Nonindicted 7 in cooperation with the victim Nonindicted 7, and used the remainder for the repayment of the existing debt of Nonindicted 7, and for future litigation costs, the lower court found Defendant 1 guilty of this part of the charges on the ground that it was used as a personal purpose unrelated to the designated purpose, which was irrelevant to the designated purpose.

Examining the reasoning of the judgment below in comparison with records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles regarding the custodian's status in embezzlement, or by exceeding the bounds of the principle of free evaluation of evidence

5. As to the Defendants’ violation of the Special Economic Act (Fraud) against Nonindicted Incorporated Company 9

In full view of the circumstances acknowledged by the adopted evidence, the lower court determined that the Defendants, at the time of concluding a delegation contract for the purchase of “○○○ Site” with Nonindicted Co. 9, the parties to the dispute regarding “○○○ Site” did not reach an agreement on the sale thereof, and even though the Defendants did not have any authority regarding the sale, such as the recommendation of the buyer, they received the right to sell the said site from the purchaser and explained as if they were possible, thereby deceiving the victim by deceiving the purchase of the money.

Examining the reasoning of the judgment below in comparison with records, the above judgment of the court below is just, and there is no violation of law by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, as otherwise alleged in the grounds of

6. As to Defendant 1’s fraud against Nonindicted Incorporated Company 10

In full view of the adopted evidence, the court below recognized that Defendant 1 obtained a promissory note which causes KRW 150 million at the face value of the issuance of Nonindicted Co. 100,000 under the pretext of the loan, even though Defendant 1 did not have the intent or ability to repay, and acquired it under the pretext of the loan. Examining the reasoning of the judgment below in comparison with the records, the above judgment of the court below is just and acceptable, and contrary to

7. As to Defendant 1’s occupational embezzlement against Nonindicted 11, etc.

In full view of the adopted evidence, the lower court found Defendant 1 guilty of this part of the facts charged that Defendant 1 was delegated with the re-purchase lawsuit by the victims, including Nonindicted 11, and embezzled money deposited for the payment of deposit money.

Examining the reasoning of the judgment below in comparison with records, the above judgment of the court below is just, and contrary to what is alleged in the grounds of appeal, there is no violation of law of free evaluation of evidence against logical and empirical rules.

In addition, according to the records, although it can be known that Defendant 1 denied the content of part of the interrogation protocol of Defendant 1 prepared by the judicial police officer as to the part of the interrogation protocol of Defendant 1, it is reasonable to view that the court below did not adopt the aforementioned content denial part as evidence in light of the fact that the purport is stated in the evidence list. Therefore, the court below did not err in violating the rules of evidence as

8. As to Defendant 2’s fraud against Nonindicted 12

In full view of the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and convicted all of the charges charged, on the following grounds: (a) Defendant 2 did not have any authority to sell “○○○ Site” and did not have any capacity to select a Si construction for the victim Nonindicted 12; and (b) did not have any capacity to select the Si construction for the victim Nonindicted 12.

Examining the reasoning of the judgment below in comparison with records, the above judgment of the court below is just, and contrary to what is alleged in the grounds of appeal, there is no violation of law of free evaluation of evidence against logical and empirical rules.

9. As to the Defendants’ fraud against Nonindicted 8

In full view of the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, such as the fact that the Defendants had not promised to demand and supply the screen fish construction work at the time of borrowing this part of the money from Nonindicted 8, and did not meet the eligibility to receive it; Defendant 1 led the establishment of the relevant company; Defendant 8 was in charge of receiving a direct remittance from Nonindicted 8; Defendant 2 also explained the project through the display of documents containing false details to Nonindicted 8 at the time, and determined that the Defendants conspired to deception Nonindicted 8, thereby deceiving this part of the money.

Examining the reasoning of the judgment below in comparison with records, the above judgment of the court below is just, and there is no violation of law by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, as otherwise alleged in the grounds of

10. As to Defendant 2’s fraud against Nonindicted 13

The court below found the defendant guilty on this part of the facts charged in light of the circumstances acknowledged by the adopted evidence. Examining the reasoning of the court below in comparison with records, the court below's determination is just, and contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of legal principles regarding fraud, or in violation of the principle of free evaluation of evidence

11. As to Defendant 1’s violation of the Special Economic Act (Fraud) against Nonindicted Incorporated Company 14

In full view of the adopted evidence, it is unclear whether Defendant 1 could transfer ownership to the victim non-indicted 14 corporation with respect to the portion of land that was paid as contingent fees when winning the lawsuit, such as cancellation of ownership transfer registration (hereinafter “the lawsuit in this case”) filed by the non-indicted 15 at the request of the non-indicted 15, and even if the non-indicted 14 corporation received the nominal money from the non-indicted 14 corporation, he did not intend to use it as the litigation cost of the lawsuit in this case, the court below found the above part of the charges on the following grounds: (a) the conclusion of the contract with the non-indicted 14 corporation with respect to the share of the land in this case was made; and (b) the non-indicted 16 would use the money received as the down payment as the litigation cost; and (c) the court below found the defendant guilty of this part of the charges. Furthermore, since the prosecutor’s written statement prepared by the non-indicted 16 was prepared by the prosecution investigator, and some contents were denied by the testimony of the non-indicted 16.

Examining the reasoning of the judgment below in comparison with the records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of the legal principle regarding the admissibility of evidence of the prosecutor’s statement prepared by the prosecutor, or in violation of

12. As to Defendant 1’s violation of the Special Economic Act (Fraud) against Nonindicted 4

The lower court convicted Nonindicted 4 of this part of the facts charged on the ground that, in full view of the circumstances acknowledged by the evidence admitted by Defendant 1, including the fact that the statements made by Nonindicted 4, Nonindicted 17, and 18 are consistent, and the content of the letter of commitment execution prepared by Defendant 1, the Defendant was unaware of this part of the facts charged, on the ground that even if the Defendant was given a loan to Nonindicted 4 as collateral, he did not intend to use the said money as litigation cost even if he did not intend to use the said money as the instant lawsuit cost, and furthermore, even if he did not intend to repay the said loan or transfer part of the share in the land

Examining the reasoning of the judgment below in comparison with records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there is no violation of the principle of free evaluation of evidence against logical and empirical rules.

Meanwhile, Article 312(3) of the Criminal Procedure Act applies not only to the case where an investigative agency other than a public prosecutor denies the suspect interrogation protocol of the defendant prepared by the investigative agency other than the public prosecutor, but also to the case where the interrogation protocol of the defendant or the suspect prepared by the investigative agency other than the public prosecutor is adopted as evidence of guilt against the defendant. Thus, the interrogation protocol of the suspect prepared by the investigative agency other than the public prosecutor for another suspect in accomplice relation with the defendant is acknowledged as evidence of guilt, and even if the defendant satisfies the requirements of Article 312(4) of the Criminal Procedure Act, such as the authenticity of the protocol is acknowledged by the suspect's court statement, it cannot be admitted as evidence of guilt unless the defendant denies the contents of the protocol on the trial date (refer to Supreme Court Decision 2009Do2865 delivered on July 9, 200), and even if the defendant 1 denies its contents, it is admissible as long as the non-indicted 17 denies its authenticity in the court of first instance, but the remaining evidence duly adopted by the court below does not affect the judgment.

13. Conclusion

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

Justices Min Il-young (Presiding Justice)