Defendant

Defendant

Kim Jong-hee

Law Firm Barun, Attorneys Park Ha-young et al.

High Military Court Decision 73 High Military Branch Decision 306 delivered on July 30, 1973

The Army Headquarters General Court Decision 73 Assistant Military Branch Decision 94 delivered on April 28, 1973

The part of the judgment of the court below against the defendant (limited to the conviction against the defendant among the judgment of the court below) shall be reversed.

The defendant shall be innocent.

1. Progression to the retrial;

The following facts are apparent in the records or obvious to this court:

A. On April 28, 1973, the Korea Army Headquarters General Law Meeting sentenced the Defendant to KRW 15 years of imprisonment and fine of KRW 20 million due to the violation of the Act on the Control of Firearms Powders and Powders, in the case of occupational embezzlement, etc. against the Defendant and Nonindicted Party 1 (the Nonindicted Party), etc. on April 28, 1973.

B. The Defendant filed an appeal against the above judgment of the court below on July 30, 1973 by the High Military Court 73, the High Military Court 73, the High Military Court 306, and on July 30, 1973, the High Military Court Governing the Defendant’s partial occupational embezzlement, violation of the Economic Stabilization and Growth Act, and violation of the Control of Firearms and Powders Act, and sentenced the Defendant to a fine of KRW 15 years and fine of KRW 11 million among the facts charged, and sentenced the Defendant not guilty of some occupational embezzlement, violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, violation of the Act on the Aggravated Punishment, etc. of Firearms and Powders, and the convening authority sentenced the Defendant to a punishment of KRW 15 years and imprisonment with prison labor for the Defendant on August 8, 1973, and became final and conclusive at that time.

C. On February 29, 1980, the Defendant was released by the suspension of the execution of the above punishment and received a special amnesty that would lose the effect of the sentence.

D. On April 5, 2010, the Defendant filed a request for a retrial with the High Court for Armed Forces regarding a final and conclusive judgment subject to a retrial. On August 11, 2010, the High Court for Armed Forces rendered a decision to commence a retrial on the guilty part of the judgment subject to a retrial and transferred the case to this court.

2. Summary of the facts charged against the Defendant in the judgment subject to a retrial

The scope of this Court's trial is limited to the conviction of the accused among the judgment subject to a retrial, and the summary of the facts charged is as follows.

On September 30, 1955, the defendant graduated from the 11st session of the Korea Army Academy at Army and served in the Army as Second Lieutenant, and was assigned to the Army, and on May 16, 1961, the defendant served as the vice president of the Korea Army Academy at the time of the Captain on November 1, 1969 and served as the vice president of the 15th session of the Korea Army at the time of the Captain on November 1, 1969, for promotion, the vice president of the 26th session, and the vice president of the same association. On August 5, 1971, the defendant served as the vice president of the Korea Army Academy at the time of the Captain on May 16, 1961.

A. Co-defendant 1 (Co-defendant 1) of the judgment subject to a retrial: (a) provided the following instructions to the effect that the co-defendant 1 (Co-defendant 1) in the judgment subject to a retrial would use the funds for the necessary and important purposes for the performance of the duties of the headquarters from a well-known person or unemployed while in office, and for the past, during the period of martial law, to keep and use the funds for the operation of military units other than the national budget, such as information expenses paid in order to be used for the necessary and important purposes during the period of martial law, under his responsibility; and (b) ordered the Defendant, who was a witness at the time of the operation of the military unit, to keep the entire funds in custody, from time to time on the surface of the operation of the military unit; and (c) provided the Defendant with sufficient knowledge that such funds should be used only for the important purpose of the operation of the military unit; (d) provided that the Defendant failed to use them for the purpose of using the funds for the purpose of using the military unit without permission from time to time to time on the surface operation of the military unit operation; (e.).

B. In collusion with Nonindicted Party 1 (Counter-board Person), Nonindicted Party 1 (Counter-board Person) was dismissed from the office of the Water Guard Commander on March 9, 1973, and in carrying out the transfer of duties, the remaining amount of KRW 23,321,00 of the military operation funds stated in the above paragraph (a) is to be embezzled for half of the above amount at around 14:0 on the same day, even though it was handed over to the New Commander, at around 16:0 on March 16, 1973, the half of the above amount is to be embezzled, and as if it was remaining on March 16, 1973, the remaining amount of KRW 11,250,60 out of the military operation funds shall be handed over to the New Commander, and the remaining amount of KRW 12,062,001 shall not be handed over;

C. On April 1972, 1972, the Defendant offered bonds to the non-indicted 2, a representative of ○○ Enterprise Co., Ltd. with a monthly interest of KRW 11 million, a sum of KRW 600,000,000,000,000,000 to the non-indicted 2, among June 1, 1972. However, the Defendant violated the above order by failing to comply with the procedure set forth in the Emergency Order on Economic Stabilization and Growth (hereinafter “Emergency Order”), although it was reported by August 9, 1972 as a creditor by August 9, 1972.

D. While obtaining permission from the Seoul Special Metropolitan City Mayor or the Do governor having jurisdiction over the address to possess guns, the decision on review was held without permission from the Seoul Special Metropolitan City Mayor or the Do governor, 5 new guns and 1 military M2 blades (the decision on review judged not guilty as to 1 military side-learning pistols on the 32-round ground in the facts charged).

3. The judgment of the court below

The court below found the defendant guilty of the above facts charged against the defendant as evidence, such as the partial statement of the defendant and the non-indicted 1 (the non-indicted 1) in the court room, the witness's each legal statement of the defendant, the non-indicted 3, the non-indicted 2's each protocol of examination prepared by the military prosecutor and the military judicial police officer concerning the defendant and the non-indicted 1 (the non-indicted 2) in each protocol of examination of witness prepared by the military prosecutor and the military judicial police officer concerning the non-indicted 2, each protocol of examination of witness, the defendant, the non-indicted 1 (the non-indicted 1) and the non-indicted 2, etc.'s own written statement, two copies of the number of seized party units (Evidence No.

4. Summary of grounds for appeal;

A. Defendant

The judgment of the court below is erroneous in the misapprehension of the rules of evidence and by misapprehending the relevant legal principles, which affected the conclusion of the judgment.

1) The Defendant was arrested by investigators belonging to the Security Command (hereinafter “Security Command”) and investigated without a warrant, and was subject to assault and cruel acts, such as physical advisers and electrical advisers, during the investigation process. In addition, security investigators threatened the Defendant to make an adviser if the Defendant was sent to the prosecution, and the Defendant did not make any statement in the trial process that was closed to the public. Therefore, among the suspect interrogation protocol prepared by the military judicial police officer, some of the written statements in the suspect interrogation protocol prepared by the Defendant, the Defendant’s written statements, etc. are prepared in the unvoluntary psychological state due to the adviser, intimidation, hearing, etc. of security investigation officers, and such voluntariness psychological state continues to exist in the prosecution investigation and the court of original instance. Accordingly, some of the written statements in the prosecutor’s protocol prepared by the Defendant and the suspect interrogation protocol prepared by the military prosecutor against the Defendant are inadmissible.

2) Some of the non-indicted 1 (the counter-indicted 1), Non-indicted 2's legal statement, non-indicted 1 (the counter-indicted 1)'s protocol of interrogation prepared by the military prosecutor and military judicial police officer of the non-indicted 1 (the counter-indicted 1) and the non-indicted 2's self-written statement, as such, are made in a psychological state in which there is no voluntariness caused by the adviser, intimidation, hearing, etc. of security investigation officers as mentioned above,

3) The security investigator collected evidence in a general criminal case, such as occupational embezzlement, at the end of the commission of various advisers who were involved in the so-called “△△△△ case,” including the Defendant, in an intensive inquiry into the Defendant as to whether he/she was involved in the so-called “△△△ case” and then did not reveal the suspected facts, and processed the evidence in a false confession and appropriate manner. Therefore, the number of units and firearms seized are the secondary evidence obtained due to an involuntary confession or statement, and its admissibility is inadmissible.

Furthermore, in the case of the retrial against Nonindicted 4, who was investigated and tried in relation to the “△△△ case,” Nonindicted 5, the military judicial police officer, who was the author of the seizure protocol, stating that Nonindicted 4’s house was seized, seized, and seized evidence, testified that Nonindicted 4’s house was actually seized and seized at the end of the protocol at the security office, and was sealed at the end of the protocol. Since the security investigator did not have the authority to investigate general criminal cases such as occupational embezzlement, the security investigator had the military police officers, such as Nonindicted 5 affix their signatures and seals on all the protocols. In the case of the Defendant, as in the case of Nonindicted 4, it is evident that the search and seizure was conducted by the security investigator, who

4) The incidental operational funds that the Defendant embezzled in collusion with Nonindicted Party 1 (the Nonindicted Party on the counter-board), was a kind of gold-counting that Nonindicted Party 1 (the Nonindicted Party on the counter-board) received individually from the persons who have a pro rata with him, and Nonindicted Party 1 (the Nonindicted Party on the counter-board) used whenever necessary for the operation of the unit, and the Defendant was entrusted with the money to the Defendant who was a witness of his pro rata with him, and thus, the crime of occupational embezzlement is not established. Furthermore, the Defendant did not comply with the order whenever his superior orders the withdrawal and use of the money he kept by Nonindicted Party 1 (the Nonindicted Party on the counter-board Party on the counter-board Party) as his superior, and there was a difference in whether Nonindicted Party 1 (the Nonindicted Party on the counter-board Party on the counter-board Party) received the money specifically from anyone.

5) The Defendant, who was a sentence of Nonindicted 2, was friendly with Nonindicted 6 (military police commander) and the person who served in the military base headquarters, and was in personal friendship with Nonindicted 2 as a result of such connection, and was given a personal friendship with Nonindicted 2 upon Nonindicted 2’s request, and was given a loan of KRW 11 million to Nonindicted 2 individual. It is not a lending of money to ○○○○ Company. Thus, the Defendant did not violate an emergency order that was subject to reporting on corporate bonds.

6) According to the Guns and Powders Control Act and the Enforcement Decree thereof, there is no need to obtain permission for those who possess guns in the line of duty pursuant to the provisions of other Acts. The firearms held by the defendant are those that the defendant received as gifts from the U.S. military officers in the Vietnam War or that he received from the officers of the U.S. military forces in the field of military service, or those that he acquired in the course of military diplomatic activities and managed in the field, and thus there is no need to obtain permission for those who possess guns in the course of performing his duties as soldiers. In addition, the new guns held by the defendant do not constitute guns that are generated by a short and strawing power, and are not subject to permission under the Guns and Powders Control Act, but for guns held by the defendant at the time, it was not subject to permission by informing the police officers as they are not subject to permission. Therefore, there was no awareness of illegality.

(b) Prosecutors;

The sentencing of the lower court (one-five years of imprisonment and fines of twenty million won) is deemed to be too unhued and unfair.

5. The judgment of this Court

(a) Special amnesty which loses the effect of sentence, and objects of request for retrial;

1) The Supreme Court held that Article 420 of the Criminal Procedure Act provides that a request for a retrial may be made in certain cases where there are certain reasons with regard to "a final and conclusive judgment of a crime of oil". If a judgment of conviction becomes void due to a special amnesty, a request for retrial based on the premise that such judgment is still null and void because it does not exist, and that a request for retrial based on the premise that such judgment is still null and void shall not be exempted. Even if a new trial court rendered a decision of final and conclusive judgment with the knowledge that there exists a judgment subject to retrial, it is not subject to a judgment because it does not become an object of a trial (Supreme Court Decision 96Do2153 delivered on July 2

2) However, in certain cases for the following reasons, it should be deemed that a request for retrial may be made even in the case of a special amnesty that would lose the effect of a sentence.

A) The special amnesty in order to lose the effect of a sentence shall lose the effect of the sentence, but the effect of the sentence by the sentence shall not be changed (Article 5(2) of the Amnesty Act), and the judgment of conviction shall be distinguishable from the pronouncement of a conviction and the pronouncement of a sentence in light of the concept, even if the sentence loses its effect by special amnesty, the sentence of conviction shall not lose its effect (in such a case, the meaning that the sentence loses its effect by special amnesty shall lose its effect even if the sentence loses its effect, and in such a case, if the sentence cannot be requested for retrial after the lapse of the grace period without the invalidation or cancellation of the sentence after the suspension of execution is sentenced, it would result in unreasonable results that a request for retrial against the final judgment of the suspension of execution cannot be made).

B) Re-adjudication is an emergency remedy procedure that correctss in a case where there is a doubt of gross misunderstanding of facts or misunderstanding of the final judgment of conviction, to realize substantial justice to the extent that it does not endanger legal stability and legal peace.

C) Therefore, even if there is a special amnesty that would lose the effect of a sentence after the final judgment of conviction, a person asserting innocence may file a request for retrial, and the court shall hold a trial on such judgment (see Supreme Court Decision 9Do2983, Feb. 11, 2000; Supreme Court Decision 9Do2983, Feb. 11, 2000; Supreme Court Decision 9Do2983, Feb. 11, 2000; Supreme Court Decision 9Do2983, Feb. 11, 2000).

B. Data and method of determining the instant case

As to a case for which a decision of commencing a new trial has become final and conclusive, a court shall make a new trial according to its instance (Article 438(1) of the Criminal Procedure Act), and the meaning of a new trial is not to examine the legitimacy of the decision subject to new trial, but to judge the case itself from the beginning. As a matter of course, the court shall make a decision on the facts charged of this case by comprehensively taking into account all the evidence which served as the basis for the decision subject to new trial and the evidence collected thereafter. According to the records, it is recognized that all the records and investigation records of the case subject to new trial have been destroyed by the time limit for recording and preservation. Thus, in determining the legitimacy of the judgment of the court below

However, even if the records of the case subject to review have been already destroyed due to the expiration of the preservation period, the records shall be restored by making every possible effort. In cases where it is inevitable to completely restore the records, the evidence of the original judgment and the value of newly presented evidence in the trial procedure, which can be known by the remaining materials, including the written judgment, should be comprehensively assessed, and the propriety of the original judgment, which is the original judgment, should be newly determined. Since the prosecutor and the defendant submitted the evidence, such as the copy of the original judgment and the copy of the original judgment, the copy of the decision subject to review, the written decision on new trial against Nonindicted 4, the copy of the decision on new trial, the written confirmation and statement of the relevant witness, and the protocol of examination of witness in the case subject to

C. Determination on whether to recognize admissibility of evidence

According to the records, it is difficult to recognize the authenticity of the examination protocol and the statement of evidence prepared by the military judicial police officer against the defendant, the non-indicted 1 (the counter-indicted 1) and the witness in the military judicial police officer, because it is doubtful whether the examination protocol and the statement of statement prepared by the defendant, the non-indicted 1 (the counter-indicted 1) are prepared by the competent military judicial police officer, and all the written statements prepared by the defendant, the non-indicted 1 (the counter-indicted 1) including the above evidence, including the evidence, are made or suspected to have been made in a psychological state that has no voluntariness due to the adviser, intimidation, hearing hearing, etc. of the security investigation officers. Thus, all the written statements prepared by the defendant, the non-indicted 1 (the counter-indicted 1) and the witness

In addition, in order to guarantee fundamental human rights, the normative power of the Criminal Procedure Act, which provides specific standards for the search and seizure procedures, should be maintained firmly so that the Constitution declaring the basis of due process and warrant requirement regarding search and seizure and the right protection of individuals can be achieved harmoniously. As such, evidence collected without following the procedures prescribed by the Constitution and the Criminal Procedure Act, as well as secondary evidence obtained based on such standards, shall not be admitted as evidence for conviction, in principle, since it does not comply with the legitimate procedures established for guaranteeing fundamental human rights. However, in determining whether to grant admissibility of seized articles illegally collected, the aforementioned provision should not be admitted as evidence for conviction in light of all the circumstances related to the act of violation committed in the process of collecting evidence, namely, the purport and degree of violation, specific process and possibility of evasion, the degree of infringement of legal interests to be protected, the relationship between the defendant and the investigation agency, the perception and intent of the investigation agency, and the overall and comprehensive examination of the facts related to the act of violation of due process and the collection of evidence, rather, if the collection of evidence constitutes an exceptional evidence that violates the principle of criminal justice and due process.

Although the process and contents of the search and seizure of the instant confiscated articles, such as the check of the number of units and firearms, are not accurately known, according to the records, it appears that the search and seizure was derived from cruel acts such as adviser or suspected of not being lawfully issued warrant, and that the search and seizure itself was conducted by a person without the investigative authority, who is not the nominal owner, in the protocol. In particular, it is determined that the initial investigation of the Defendant et al. was conducted on the facts of the oota mother’s association and the acceptance of bribe, and that the unauthorized possession of the guns was conducted only after the discovery of the firearms in the course of the search and seizure of the Defendant’s residence and the seizure thereof was conducted. Even if the lawful warrant was issued at the time of the search and seizure of the Defendant’s residence, it is very doubtful whether the relevant firearms were included in the items to be seized by the warrant, and it is doubtful that the search and seizure was conducted in accordance with due process. Accordingly, it is reasonable to deem that the search and seizure of the said firearms constituted an unlawful act without undergoing due process as evidence.

D. Determination on occupational embezzlement

As to whether the Defendant conspired with Nonindicted Party 1 (the Nonindicted Party 1) for embezzlement of the instant incidental operation funds, the record reveals that it is difficult to avoid the possibility that Nonindicted Party 1 (the Nonindicted Party 1) received encouragement or support payments, etc. from his own seat from Nonindicted Party 1 (the Nonindicted Party 1) to manage the said funds without any restriction, and under his own judgment, used the funds as incidental operation funds, etc. regardless of the operation of the military unit. Even if the information expenses, etc., which were ordered to be used for necessary for carrying out the duties of martial law and for important purposes, were included in the said money, it is difficult to find out how much the amount remains at the time of the instant case. Moreover, it is difficult to distinguish between the money received by Nonindicted Party 1 (the Nonindicted Party 1) and the above information expenses, etc., which was managed by Nonindicted Party 1 (the Nonindicted Party 1) order, the Nonindicted Party 1 (the Party 1) who was directly in charge of the said funds, and it was difficult to find out how the said funds were transferred to Nonindicted Party 1 (the Nonindicted Party 1) or the Defendant 1).

E. Determination as to the violation of emergency orders

It is clear under Article 10 of the Emergency Order whether the Defendant borrowed money to Nonindicted 2’s company (i.e., Nonindicted 2) but did not file a report with the head of the competent tax office. The debentures subject to the emergency order are corporate bonds rather than personal bonds. As seen earlier, Nonindicted 2’s investigation agency and the court below’s statutory statement and the number of units of the instant company are inadmissible. Even if the admissibility of snow company is acknowledged, it is difficult to conclude that the Defendant borrowed money to Nonindicted 2’s company (i.e., Nonindicted 2) rather than Nonindicted 2’s individual company. Furthermore, it is difficult to recognize that the Defendant’s personal company’s personal company’s obligation to inform the head of the competent tax office of the fact that Nonindicted 2’s personal company’s obligation to report was not an urgent obligation to inform Nonindicted 2 of the fact that Nonindicted 2’s personal company’s personal company’s obligation to report was not an urgent obligation to the head of the competent tax office.

F. Judgment on the violation of the Guns and Powders Control Act

With respect to the fact that the defendant possessed the instant firearms without the permission of the competent authorities, six firearms (No. 31 to 36) that were seized as evidence, which were submitted as evidence corresponding thereto, cannot be used as evidence, and the defendant stated in this court that the defendant possessed the instant firearms without the permission of the competent authorities, but there is no evidence to prove that the defendant did not possess the instant firearms without the permission of the competent authorities, and there is no other evidence to prove that the defendant possessed the instant firearms without the permission of the competent authorities (or it is difficult to view that the Defendant was manufactured by M2 blades, which were possessed by the defendant, as they were manufactured for military use and are subject to the permission of possession).

G. Sub-determination

Therefore, although the facts charged against the defendant in this case (limited to the guilty part against the defendant in the judgment of retrial) fall under the case where there is no proof of crime, the court below convicted all of them. The judgment of the court below is erroneous in the misapprehension of the rules of evidence and the misconception of facts

6. Conclusion

Thus, since the defendant's appeal is well-grounded, under Article 364 (6) of the Criminal Procedure Act, without examining the prosecutor's argument of unfair sentencing, the part of the judgment of the court below against the defendant (limited to the conviction against the defendant among the judgment of retrial) shall be reversed, and the following is

The summary of the facts charged against the defendant among the judgment subject to a retrial is as shown in Paragraph (2) above, and as seen in Paragraph (5) above, since there is no proof of each crime, the judgment not guilty is rendered by the latter part of Article 325 of the Criminal Procedure Act (a summary of the judgment by Article 440 of the Criminal Procedure Act

Judges Choi Jae-in (Presiding Judge)