[1] The requirements for the protocol, documents, etc. under Articles 312 and 313 of the Criminal Procedure Act as evidence under Article 314 of the same Act and the meaning of "when a person who needs to make a statement at the trial date is unable to make a statement because his/her whereabouts is unknown or due to any other similar cause" under Article 314 of the same Act

[2] In a case where a witness summons was served several times by adopting the victim of the injury as a witness, but it was impossible to find the whereabouts of the victim, the court held that the court below erred by misapprehending the legal principles in finding the admissibility of evidence of the above witness protocol and making it admissible as evidence, and that the court below erred by misunderstanding the legal principles

[1] Articles 312, 313, and 314 of the Criminal Procedure Act / [2] Article 257(1) of the Criminal Act; Articles 312, 313, and 314 of the Criminal Procedure Act

[1] Supreme Court Decision 84Do1697 delivered on February 26, 1985, Supreme Court Decision 96Do575 delivered on May 14, 1996 (Gong1996Ha, 1967), Supreme Court Decision 2003Do171 Delivered on March 11, 2004 (Gong2004Sang, 664 delivered on December 222, 2006) (Gong2006Do7479 Delivered on July 26, 2007)

Defendant

Defendant

Attorney Lee Jong-chul

Seoul Central District Court Decision 2009No4184 Decided February 4, 2010

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. The summary of the facts charged in this case was around September 25, 2008, the defendant maintained the judgment of the first instance court that found the defendant guilty of the above facts charged by taking as evidence the police statement against the victim, the statement of the statement of the police against the victim, the statement of the non-indicted 2, and the photograph of the injury part of the non-indicted 1, which found the defendant guilty of the above facts charged, by taking into account the victim non-indicted 1, who took a part of the victim's inner part of the victim's inner part of the victim's inner part against the victim Non-indicted 1, who took part of the victim's inner part of the victim's inner part of the victim's inner part of the victim

B. However, the lower court’s determination that recognized the victim’s police statement and Nonindicted 2’s written statement as admissible evidence is difficult to accept for the following reasons.

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, a person who needs to make a statement on the court date shall be a person who is unable to make a statement at the public trial due to death, illness, foreign residence, unknown whereabouts, or any other similar cause, and shall have been made under particularly reliable circumstances. Here, "when a person who requires a statement on the court date is unable to make a statement due to his/her unknown whereabouts or any other similar cause" refers to cases where it is impossible to make a statement due to a request for the detection of his/her whereabouts due to unknown address, etc., and the fact that a writ of summons is impossible to serve due to unknown address, etc. is insufficient to view that it constitutes such case (see Supreme Court Decisions 314Do496, Jun. 1, 2007; 205Do5496, Apr. 6, 1986, etc.).

According to the records, the court of first instance is aware of the fact that the defendant adopted the victim and the non-indicted 2 as a witness without consenting the victim to the police's written statement and the non-indicted 2's written statement as evidence, and the service of the witness summons was not carried out on several occasions, but it was not served on the witness. Thus, the court below revoked the adoption of the witness without investigating the location of the witness, such as requesting the detection of the whereabouts of the witness, and adopted and investigated the above police written statement as evidence. In light of the above legal principles, the above police written statement, etc. does not constitute "when a person who needs to make a statement at the court date is unable to make a statement due to unknown whereabouts or any other similar cause" and thus,

Nevertheless, the court below acknowledged the above police statement, etc. as admissible evidence under Article 314 of the Criminal Procedure Act and admitted it as evidence for conviction against the charged facts of this case. Such judgment of the court below is erroneous by misapprehending the legal principles on admissibility of evidence under Article 314 of the Criminal Procedure Act, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Park Si-hwan (Presiding Justice)