[1] The meaning of "date on which he becomes aware of a criminal under Article 230 (1) of the Criminal Procedure Act"

[2] The case holding that the period of filing a complaint should be calculated from that time on the ground that it is reasonable to deem that the complainant was aware of the communications between the wife and the deceased only when the prosecutor's office rendered a decision not to prosecute rapes against the deceased and the wounded

[3] The elements for exercising the prosecutor's right to prosecute to constitute an abuse of the right to prosecute

[4] The case holding that when a complaint was filed in a case involving multiple-competences, a decision of non-competences on the charges of rapes, and a subsequent decision of dismissing the charges of rapes was made after the complaint was filed on the charges of rapes, and the complaint was filed on the grounds that a second-competences on the charges of non-competences, and a second-competences on the charges of adulterys were not included in abuse of the right to prosecutes

[5] Admissibility of evidence of verification protocol for a recording tape recorded by a private person, other than an investigative agency

[6] Requirements for the admissibility of evidence of the protocol containing a full-time statement or its full-time statement made by the defendant, and the meaning of "when the statement was made under particularly reliable circumstances" under Article 316 (1) of the Criminal Procedure Act

[1] The main sentence of Article 230(1) of the Criminal Procedure Act provides that "no complaint shall be filed after the lapse of six months from the date on which a person becomes aware of a crime subject to victim's complaint," which means that a person becomes aware of a crime is aware of a crime and a criminal to the extent that the person having the right to file a complaint can file a complaint from the ordinary point of view, and that a person having the right to file a complaint is finally aware of the facts that the person having the right to file

[2] The case holding that in a case where the complainant knew of the fact that there was a sexual intercourse between the wife and the wounded, but the wife asserted that the sexual intercourse between the wounded and the wounded was caused by rape, and the prosecution filed a complaint against the latter as a crime of adultery, it is reasonable to view that the complainant knew of the adultery between the wife and the wounded only when the prosecutor rendered a decision of non-guilty suspicion against the rape was rendered, and that the complainant knew of the adultery between the wife and the wounded only when the prosecutor made a decision of non-guilty suspicion against the rape

[3] In a case where it is deemed that a prosecutor voluntarily exercised his/her authority to institute a prosecution and gives substantial disadvantage to the defendant, the effect of the prosecution may be denied by deeming that it is an abuse of the authority to institute a prosecution.

[4] The case holding that when a complaint was filed in a case involving multiple-competences, a decision of non-competences on the charges of rapes, and a decision of dismissing the charges of rapes was made after the complaint was filed on the charges of rapes, the complaint was revoked, and subsequent decision of dismissing the charges of inter-competences, and a second-competences were filed on the charges of non-competences, the charge does not constitute abuse of the authority to prosecute the victims

[5] The Protection of Communications Secrets Act does not follow the provisions of this Act, the Criminal Procedure Act or the Military Court Act, without censorship of mail, wiretapping of telecommunications or recording or listening to conversations between others (main sentence of Article 3). Mail or its contents obtained through illegal censorship in violation of this provision and the contents of telecommunications known through or recorded through illegal wiretapping cannot be used as evidence in a trial or disciplinary procedure (Article 4). No person shall record conversations between others or listen to such recording or listening by electronic or mechanical means (Article 14(1)), and Article 4 of the Criminal Procedure Act shall apply to the recording or listening thereof (Article 14(2)). Since the recorded in the recording tape verification protocol contains conversations between the defendant and the non-indicted, since it is not open to the public, the contents of the recording tape recorded in Articles 14(2) and 4 of the Criminal Procedure Act other than those recorded in the recording tape are not admissible as evidence by the defendant's statement made in accordance with Article 14(3) and the contents of the recording recorded in the recording tape cannot be admitted as evidence of the recorded recorded evidence between the defendant and the recorded tape.

[6] When a statement made on the date of trial by a person other than the defendant contains a statement of the defendant, it may be admitted as evidence when it was made under particularly reliable circumstances pursuant to the provisions of Article 316 (1) of the Criminal Procedure Act. The protocol in which the statement was made refers to the case where its admissibility is recognized pursuant to the provisions of Articles 312 through 314 of the Criminal Procedure Act, and the case where the above conditions are met pursuant to the provisions of Article 316 (1) of the Criminal Procedure Act. Here, "when the statement was made under particularly reliable circumstances" refers to the case where there is little doubt that it was made under such a statement, and the case where there is any specific and external circumstances that guarantee the credibility or voluntariness of the contents of the statement.

[1] Article 230 (1) of the Criminal Procedure Act / [2] Articles 241 and 297 of the Criminal Act, Article 230 (1) of the Criminal Procedure Act / [3] Article 247 of the Criminal Procedure Act / [4] Article 247 of the Criminal Procedure Act / [5] Article 313 (1) of the Criminal Procedure Act, Articles 3, 4, and 14 of the Protection of Communications Secrets Act / [6] Articles 310-2, 312, 313, 314, and 316 (1) of the Criminal Procedure Act

[1] Supreme Court Decision 99Do576 delivered on April 23, 1999 (Gong1999Sang, 1098) / [3] Supreme Court Decision 99Do577 delivered on December 10, 199 (Gong2000Sang, 249) Supreme Court Decision 2001Do3026 delivered on September 7, 2001 (Gong2001Ha, 2213) / [5] Supreme Court Decision 96Do1669 delivered on October 15, 196 (Gong196Ha, 3484), Supreme Court Decision 97Do240 delivered on March 28, 199 (Gong197, 130) / [6] Supreme Court Decision 200Do30290 delivered on March 29, 2010 (Gong130900) / [5] Supreme Court Decision 2010Do400909 delivered on March 2090, 201009.

Defendant 1 and one other

Defendants

Attorney Choi Gyeong-tae et al.

Seoul District Court Decision 2000No1435 delivered on May 24, 2001

All appeals are dismissed. One hundred and twenty days of detention days after the appeal shall be included in each original sentence.

1. As to the expiration of the period for filing a complaint

The main text of Article 230(1) of the Criminal Procedure Act provides that "no complaint shall be filed after the lapse of six months from the date on which the person becomes aware of the offender in relation to a crime subject to victim's complaint". The phrase "the person becomes aware of the offender" means that the person in ordinary position knows the crime and the offender to the extent that the person in charge can file the complaint, and that the person in charge of the crime is aware of the fact that the person in charge of the victim's complaint has a conclusive perception

According to the records and facts acknowledged by the court below, the complainant collected evidence on October 31, 1996 by investigating the contents of the phone call call on September 31, 1996, and told the defendants to the effect that there was a sexual relationship between the defendants on November 11 and 12 of the same month, but he asserted that the above sexual relationship was caused by rape by the defendant 2, and on December 30, 1996, the complainant filed a complaint against the defendant 2 on December 30, 1996 by the prosecutor's office against the defendant on the charge of rape on April 7, 1997, after the non-guilty decision was rendered on April 1, 1997. Thus, the complainant's complaint against the defendant 1 was lawful. The prosecutor's complaint against the defendant 196.

Therefore, we cannot accept the allegation in the grounds of appeal purporting that the complaint in this case was unlawful as filed after the lapse of the period for filing the complaint, under the premise that the complainant knew of the Defendants’ adultery around September 1996.

2. As to whether the right to prosecute has been abused

According to the records, on April 7, 1997, the complainant was investigated by the prosecution on the charge of rape. Accordingly, the defendant 1 asserted that the complainant was raped, and the defendant 2 denied that there was no sex relationship first, but led to the confession of rape on February 23, 1998. The prosecutor prosecuted the defendant Park Jong-nam on February 27, 1998 and made a decision of non-guilty suspicion against the defendants. After that, on March 9, 198, dismissed the prosecution against the defendant 2 on March 13, 1998 due to the cancellation of the rape complaint against the defendant 1 on March 13, 1998, and the Seoul High Public Prosecutor's second investigation order on the appeal against the above non-suspect's decision on August 18, 1998 was issued by the Seoul High Public Prosecutor's Office on February 27, 1998.

In a case where it is deemed that a prosecutor voluntarily exercised his/her authority to institute a public prosecution and gives substantial disadvantage to the defendant, the effect of the institution of public prosecution may be denied by deeming it as abuse of the authority to institute a public prosecution (see Supreme Court Decision 9Do577, Dec. 10, 199). However, solely on the foregoing circumstances that led to the institution of public prosecution of this case, the indictment of this case by the prosecutor cannot be deemed as significantly deviating from his/her authority to institute a public prosecution by giving substantial disadvantages to the defendant as a arbitrary exercise of authority

Therefore, we cannot accept the allegation in the grounds of appeal that the prosecution of this case constitutes abuse of authority to prosecute.

3. As to the violation of the rules of evidence

In full view of the Defendants’ partial statement in the second trial record, the witness’s statement in the first instance court’s third trial record, the statement in the tape verification protocol in the first instance court’s third trial record, each part of the protocol of examination of each suspect against the Defendants in the prosecutor’s protocol (including the part of the complainant’s statement), each part of the protocol of examination of the prosecutor’s protocol against the Defendants in the prosecutor’s protocol, the Defendants in the preparation of the prosecutor’s protocol and the complainant’s written statement, and the part of the written statement in Defendant 1’s written statement, the lower court acknowledged the facts as indicated in its holding, and determined that it is sufficient

However, the Protection of Communications Secrets Act does not follow this Act, the Criminal Procedure Act, or the Military Court Act without censorship of mail, wiretapping of telecommunications, or recording or listening to conversations between others (main sentence of Article 3). The mail or its contents obtained through illegal censorship in violation of this provision, and the contents of telecommunications known through or recorded through illegal wiretapping shall not be admitted as evidence in a trial or disciplinary procedure (Article 4). No person shall record conversations between others that are not open to the public or listen to it through electronic or mechanical means (Article 14(1)), and Article 4 shall apply to recording or listening to such recording or listening (Article 14(2)). According to the records in the court below’s protocol of examination of recording tape, the part of recording conversations between Defendant 1 and non-exclusive persons recorded between others on November 8, 196, and thus, it shall not be admissible as evidence under Articles 14(2) and 4 of the above Act and Article 14 of the aforementioned Act without the consent of the Defendants between the first day of December 1, 1996.

In addition, according to the records of the court below's examination of the recording tape, the part of the recording between November 11, 1996 and the 12th day of the same month which recorded the conversations with the defendant 1 does not constitute a recording between others. Thus, it does not apply Article 14 of the above Act. However, the contents of verification conducted with respect to the recording tape are the same as those of the recording slip attached to the verification protocol, so it still constitutes evidence. Among them, the contents of the recording tape are still recorded in the recording tape. Since the above defendant's statement are different from the documents of the above defendant's statement other than those of Articles 311 and 312 of the Criminal Procedure Act, so long as the above defendant's statement can be used as evidence in order to use the recording tape as evidence, it cannot be acknowledged that the contents of the recording tape's statement made by the defendant in the above statement made by the defendant in a preparatory hearing or during a public trial pursuant to the proviso of Article 313 (1) of the Criminal Procedure Act.

Meanwhile, among each protocol of interrogation of the accused's statement in the court of first instance and each protocol of statement against the accused prepared by the prosecutor, the contents of the accused's statement or their full text are included. However, when the statement made by a non-defendant on the date of trial contains contents of the accused's statement, it may be admitted as evidence when the statement was made under particularly reliable circumstances pursuant to the provisions of Article 316 (1) of the Criminal Procedure Act. The protocol containing the full text of the statement falls under cases where its admissibility is acknowledged pursuant to the provisions of Articles 312 through 314 of the Criminal Procedure Act, and further, if the above conditions are met pursuant to the provisions of Article 316 (1) of the Criminal Procedure Act (see Supreme Court Decision 9Do4814, Sept. 8, 200; Supreme Court Decision 99Do4814, Sept. 8, 200; Supreme Court Decision 200Do3150, Sept. 9, 200>

Therefore, the court below's finding the defendants guilty of the above violation of the law of evidence verification of the recording tape as evidence is not admissible as evidence, but since the remaining evidence is admissible as evidence, in light of the records, it is reasonable that the court below acknowledged the remaining facts except for the part 6, 6, 13, 7, and 9 and the part 8, 4, and 8, 8, among the facts in the judgment of the court below, which were admitted by the entry of the above records of evidence verification of the recording tape among the facts in the judgment of the court below, and there is sufficient reason to acknowledge the defendants' criminal facts. Thus, it is reasonable that the court below found the defendants guilty of the above violation of the law of evidence verification as to each part of the judgment of the court below, which affected the conclusion of the judgment, and the court below did not err in the misapprehension of facts against the rules of evidence that affected the conclusion of the judgment.

4. Conclusion

Therefore, all appeals are dismissed, and part of the detention days after the appeal is included in each original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)