[1] The time limit to revoke or withdraw the expression of consent to evidence (=the time of completion of the examination of evidence) and, where the defendant did not immediately raise an objection to the consent of the defense counsel, whether the admissibility of evidence is admissible (affirmative with qualification)

[2] Whether the protocol of examination of witness, which is part of the protocol of trial of a criminal case against another defendant, is admissible (affirmative)

[3] Admissibility of evidence of a protocol containing a hearsay statement or a hearsay statement that the defendant did not agree to admit as evidence

Defendant

Defendant

Attorney Span-ri

Seoul High Court Decision 2003No2950 Delivered on June 29, 2004

The appeal is dismissed.

1. The declaration of consent to evidence under Article 318 of the Criminal Procedure Act may be cancelled or withdrawn before the examination of evidence is completed. However, the consent of the court of first instance cannot be cancelled or withdrawn after the examination of evidence is completed. Once the declaration of consent to evidence is cancelled or withdrawn after the examination of evidence is completed, even if the declaration of consent to evidence is cancelled or withdrawn after the examination of evidence, the admissibility of evidence already acquired before the cancellation or withdrawal shall not be lost. In addition, although the counsel is the party who is the subject of the lawsuit, unless against the express intent of the defendant, the counsel can consent to the admissibility of evidence on behalf of the defendant, unless the defendant explicitly expresses his/her consent that the defendant does not consent to the admissibility of evidence. In this case, if the defendant does not raise an objection against the consent of the counsel without delay, the counsel can consent to the admissibility of documents or articles as evidence after the approval of the counsel is recognized and the consent is not cancelled or withdrawn before the examination of evidence is completed (see, e.g., Supreme Court Decisions 8Do1628, Nov. 8, 19888).

According to the records, in the evidence list, which forms a part of the protocol of this case, the statement of the chief judicial police officer's statement, the interrogation protocol of the non-indicted in the preparation of the prosecutor's protocol (including the questioning chief's statement) and the written statement prepared by the literature chief's signature holder as evidence on the first trial date of the first instance court. According to the first trial records, the court stated that all the defendants and defense counsel stated their opinions as to the result of the examination of evidence, and there is no trace that the above statement of consent was revoked or withdrawn before the examination of evidence is completed.

If it is difficult to conclude that the consent of the evidence at the first trial of the court of first instance was the result of a unilateral declaration of intent by a defense counsel, and if the defendant did not revoke or withdraw it on the grounds that the expression of consent was merely the unilateral declaration of intent by a defense counsel, even if the court of first instance thereafter asserted that the admissibility of evidence is disputed, the admissibility of evidence already lawfully granted is not lost, and thus, the court of first instance and the court of first instance adopted it as evidence is proper to take measures to admit it as evidence, and there is no violation of the legal principles as

2. The protocol of trial of a criminal case against another defendant is naturally admissible as a document under Article 315 subparagraph 3 of the Criminal Procedure Act (see Supreme Court Decision 64Do135, Apr. 28, 1964; Supreme Court Decision 66Do617, Jul. 12, 196). The protocol of examination of witness, which is part of the protocol of trial, shall be considered as admissible as a document under Article 315 subparagraph 3 of the Criminal Procedure Act.

In light of the above legal principles and records, it is proper that the court below adopted the protocol of examination of witness as evidence of the original literary owner, which is part of the protocol of the third trial of this case, as evidence of guilt, and there is no violation of the rules of evidence or misapprehension of the legal principles

3. In principle, a protocol containing a full-time statement or a full-time statement shall not be admissible in accordance with the provisions of Article 310-2 of the Criminal Procedure Act. However, the full-time statement shall not be admissible in accordance with the provisions of Article 316(2) of the Criminal Procedure Act, only when the person making the original statement is unable to make a statement due to death, illness, residence in a foreign country or any other reason, and it shall be exceptionally admissible in accordance with the provisions of Article 316(2) of the Criminal Procedure Act, and the protocol containing a full-time statement shall be admissible in cases where its admissibility may be recognized in accordance with the provisions of Article 312 or 314 of the Criminal Procedure Act, and shall be exceptionally admissible in accordance with the provisions of Article 316(2) of the Criminal Procedure Act (see

According to the records, the part of the testimony of the court below, which was adopted as evidence by the court below, is a professional statement whose contents are grammaticism, and which is, in principle, inadmissible pursuant to Article 310-2 of the Criminal Procedure Act. However, according to the reasoning of the court below, it is difficult to conclude that the court below adopted the part of the above hearsay statement as evidence among the testimony of gambling, and even if the part of the above hearsay statement was adopted as evidence of conviction, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to the abduction and inducement of profit-making, etc. of the defendant, even if the above part of the testimony was excluded, can be sufficiently convicted by the remaining evidence duly adopted by the court of first instance and the court below. Thus, the error of the court below is not erroneous in the misapprehension of the judgment which affected the conclusion of the

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

Justices Yoon Jae-sik (Presiding Justice)