Ministry of Justice before filing a criminal case

Since the preservation of evidence pursuant to Article 184 of the Criminal Procedure Act cannot be claimed before the defendant or suspect is prosecuted, the preservation of evidence before the case is prosecuted has no effect.

Article 184 of the Criminal Procedure Act

Supreme Court Decision 79Do792 delivered on June 12, 1979 (No. 615 of the Court Gazette, No. 12050 delivered on June 12, 197)

A

Jeju District Court (78Gohap40) in the first instance

The lower judgment is reversed. The Defendant is acquitted.

The gist of the grounds for appeal by the defendant is that the defendant's protocol of examination of the suspect who prepared the examination of the above defendant B, among the evidence admitted by the original judgment as evidence of guilt, was prepared in a state where the defendant was not in compliance with normal procedures, such as questioning the defendant at night by asking the defendant to the reading room of the prison and prohibiting meeting. As such, there is no voluntariness and eventually, the protocol of examination of the witness prepared in accordance with the procedure for the preservation of evidence against B was not in violation of the procedure for the preservation of evidence, and it was conducted in misunderstanding the legal principles for the preservation of evidence. As such, this protocol of examination of the witness cannot be admitted as evidence against the defendant, and even if there is no evidence to acknowledge the facts charged by the defendant, the original judgment that sentenced the defendant guilty is erroneous, and even if it is found guilty of domestic affairs, the original judgment is unfair. Therefore, first, the defendant'

The only evidence cited by the original judgment as evidence that the defendant instigated the defendant B to alter the ownership certificate of real estate, which is private document, is the evidence that the original judgment was cited as evidence. The only evidence is the witness examination protocol prepared by the procedure for the preservation of evidence and the examination protocol prepared by the court below as to the defendant Eul as to the above Kang Nam-nam, which was prepared by the procedure for the preservation of evidence, and the examination protocol prepared by the procedure for the preservation of evidence in the court below as to whether it is legitimate and valid for the examination protocol of the witness as to the above B to be used as evidence which is acknowledged as evidence by the procedure for the preservation of evidence. The procedure for the preservation of evidence under Article 184 of the Criminal Procedure Act is under circumstances where it is difficult for the suspect or his defense counsel or the public prosecutor to use the evidence unless it is preserved by the investigation agency after the crime against the offender was committed in the first trial day. Thus, even if there is a mere suspicion that a certain criminal offense is not a suspect or the defendant's status, it cannot be said that the defendant violated the procedure for the preservation of evidence or examination protocol as evidence.

In this case, according to the records, it is clear that the defendant was aware of the criminal facts such as the alteration of private documents to the prosecutor's office on June 9, 1978, and the examination of the witness by the procedure for the preservation of evidence against the defendant as to the above defendant B was conducted on June 3, 1978, and it is invalid that the examination of the witness by the procedure for the preservation of evidence against the defendant's criminal facts against the defendant was conducted before the investigation agency's admission to the investigation agency on June 3, 1978, the examination of the witness by the procedure for the preservation of evidence against the same defendant was conducted in violation of the legal principles of the procedure for the preservation of evidence. Therefore, the invalid examination of witness cannot be used as

Even if the protocol of examination of witness as to the above-mentioned B is valid, the statement of the defendant that the defendant had instigated the alteration of a private document is difficult to believe it, and it is insufficient to admit the criminal facts of the defendant, and the protocol of examination of witness as to the above-mentioned B is evidence of guilt.

Then, I will examine whether the suspect interrogation protocol as to B prepared by the prosecutor was written as evidence of the defendant's private document alteration crime.

In light of the results of the fact-finding inquiry inquiry conducted in the Jeju prison, the first interrogation of the suspect who was sent by the defendant B to the prosecutor on June 8, 1978, and the first interrogation of the suspect who was sent after the case was sent was merely invoked in the first interrogation, and thus, the first interrogation of the suspect who was sent after the case was sent became the first interrogation of the suspect, and the first interrogation of the suspect who was sent before the case became the first interrogation of the suspect was made the first interrogation of the suspect. Further, the defendant B and the first interrogation of the suspect was made the first interrogation of the suspect on May 30, 1978. At the same time, the defendant B and the first interrogation of the criminal facts caused the social question, or had a heavy character, and it can be seen that the suspect's interrogation of the suspect who was sent to the prosecutor during the night without meeting other than the defense counsel. However, this fact alone cannot be rejected as long as the suspect was prepared in the same prosecutor's office or the prosecutor's protocol without admissibility.

Therefore, it is necessary to examine whether the above B's statement among the interrogation records prepared by the defendant as to B was credibility (this part is consistent with the contents of the same person's statement in evidence preservation procedure or two times, and it is also judged as above). According to this case's examination by the prosecutor, it is consistent with the court below and the court below's ruling to the extent that the defendant is the legal representative, and it is hard to conclude that the defendant's remaining statement was made in the same manner as the above 1's statement by 6's prosecutor's office after being explained by the applicant and the date of confirmation of the above 1's office, but it is hard to conclude that the above 1's statement was made in the same manner as the above 1's prosecutor's office, and it is hard to conclude that the defendant's remaining statement was made in the form of the above 1's evidence verification statement by 6's representative, which is the date of evidence preservation of the case's transfer of land ownership.

When collecting the results of the record verification of the claim for ownership transfer registration with respect to plaintiffs E and defendant F at the Jeju District Court 78Na39 at the same time and party members, the defendant was ordered to attend the third public trial of the above civil case to the third public trial and the fact that the defendant's statement is "No. 26, 1976" at the fourth public trial of May 25, 1978 after he was ordered the other party's representative to attend the top, and was stated to the same effect as the fact that the copy is wrong, but it is stated to the effect that the statement of the above case was written to the same effect as the statement of the defendant's prosecutor's office, and it is difficult to conclude that the date on which the plaintiff's written application for ownership transfer registration had been made to the above person, and that the defendant's statement was made to the above person's own economic interest without the consent of the court of the above civil case, and that the defendant's statement was made to the extent that it did not have any economic interest in the above case.

Ultimately, it is insufficient to view that the suspect interrogation protocol and the statement of the same person on the criminal facts that the defendant instigated the alteration of private documents to the above B as evidence of conviction for the crime of the alteration of private documents, and it cannot be found that there is no evidence to prove the defendant's guilty for the crime of the alteration of private documents, even if the prosecutor examined all other evidence.

Then, according to the trial date for the case of the crime of uttering of private document by the defendant, the defendant did not submit the altered private document to the court, and there is no evidence to acknowledge that the defendant had instigated alteration of private document as seen above, and there is no evidence to prove that the defendant knew that the altered document was altered, and there is no evidence to prove that the defendant knew that the altered document was altered, and there is no other evidence to prove that the defendant was aware that the altered document was altered. Thus, the charge of the crime of uttering of private document by the prosecutor on the premise that the defendant was aware that the altered document was altered shall be caused only to the case where there is no evidence to prove that the defendant had known that the altered document was altered.

Even if the defendant was aware of the fact that he had been altered, the defendant did not submit the altered private document to the court. Thus, it is difficult to believe that the defendant's statement in the prosecutor's office and the court of original instance, which stated that the defendant submitted it to the judge on May 25, 1978, the fourth pleading of the civil case prior to the alteration, was made, for the following reasons.

According to the records, first of all, the above Jeju District Court 78Ra65 case No. 4, a civil case No. 78Ga65 case was in progress without attendance of the attorney-at-law who is the other party's representative and only the defendant was present while the other party was present at the court. However, in ordinary cases, where the other party was absent at the time of the delivery in court, the other party who is the other party or his legal representative cannot present the original evidence. Second, if the defendant submitted evidence different from the evidence No. 5 (Evidence No. 5) which was submitted in the civil case, at the time of his pleading (in this case, the evidence No. 5 was altered) or the party who submitted the document, as a new evidence, to submit it to the court and file it with other evidence, and considering that the above evidence No. 4, a new evidence No. 1978, May 25, 1978 was submitted, the above evidence No. 4 of the defendant's title of real estate was submitted.

In the end, the facts charged of the crime of uttering of a falsified document against the defendant by the prosecutor are also attributable to the time when there is no evidence to prove the facts charged, and all the facts charged against the defendant are returned to the time when there is no evidence to prove the facts, so the verdict of innocence should be pronounced. On the contrary, the original judgment which pronounced a guilty cannot be found to have any defect in mistake of facts, and there is a reason to discuss the defendant's assertion that the defendant'

Therefore, since the appeal by the defendant is well-grounded, the original judgment is reversed in accordance with Article 364(6) of the Criminal Procedure Act and the judgment is rendered again as follows.

Criminal facts

Defendant was a lawyer;

1. On May 2, 1978, at the defendant office located in the defendant office located in the defendant office located in the first half of the year, the defendant ordered the defendant to keep the defendant in accordance with the date of confirmation of the person under his jurisdiction altered by the defendant J on the date of preparation of the plaintiff's claim for the registration of ownership transfer between the plaintiff E and the defendant F, and one other, which was submitted by the defendant as the plaintiff's representative. Thus, the defendant ordered the defendant to write down the above real estate ownership certificate by altering one copy of the plaintiff's private document under the above J et al.'s private document, as stated in the crime in the above B.

2. On the 25th 14:00 of the same month, the document altered by the Jeju District Court which examines the above litigation case is exercised by presenting it to the presiding judge who is unaware of the circumstances as if it was genuine.

As stated above, the above facts charged are subject to the case where there is no evidence to prove the facts of crime as stated in the grounds for reversal prior to the judgment, and there is no evidence to prove the facts of crime. Thus, not guilty under the latter part of Article 325

It is so decided as per Disposition for the above reasons.

Judges next Full-Time (Presiding Judge) Kim Yong-Order