The case holding that there was a violation of the rules of evidence and incomplete hearing

If the suspect's statement in the record of the preservation of evidence is not admissible and the other witness's statement is found guilty without probative value, the violation of the rules of evidence and the incomplete hearing are erroneous.

Articles 184 and 308 of the Criminal Procedure Act

Supreme Court Decision 68Do1458 Decided December 3, 1968, 72Do2104 Decided November 28, 1972

Defendant

Attorney Kim Jong-chul, Park Jong-chul

Seoul High Court Decision 77No776 delivered on July 23, 1977

The original judgment is reversed, and the case is remanded to Seoul High Court.

The defendant's grounds of appeal and his defense counsel Kim Jong-chul's grounds of appeal are examined together.

원심판결 이유에 의하면 1심판결이 들고있는 증거를 기록에 의하여 따져보면 1심이 피고인을 유죄로 인정한 조치는 정당하고 사실 오인이나 증거채택 및 증거판단을 그릇한 허물이 발견되지 아니한다하여 이에 대한 피고인의 항소를 이유없다고 기각하였다. 이렇게 하여 원심판결이 그대로 유지한 1심판결이유에 의하면 피고인은 1976.5.26 14:00경 충남 논산군 두마면 부남리 산 112의3 소재 임야에 인접해있는 고추밭에서 일하고 있던 피해자를 강간하려다 상해만 입히고 미수에 그친후 후환이 두려운 나머지 양손으로 동녀의 목을 조르면서 머리를 땅에 짓찧다가 새끼줄로 동녀의 목을 둘러 살해하고 같은날 22:00경 살해 장소에서 약 35.8미터 거리의 인접산 소나무 밑에 삽으로 땅을 파고 동녀의 사체를 매장하여 유기한 범죄사실을 인정하는 증거로서

1. Defendant's legal statement;

1. The legal statement of the designated person in both sides of the witness;

1. Entry of each protocol of examination of the witness in respect of the person who has the same tear as the witness per the procedure for the preservation of evidence against the judge’s opules;

1. Entry of the protocol of verification by a judge in accordance with the procedure for the preservation of evidence;

1. Statement in the examination records of each suspect against the accused in the preparation of handling affairs by a public prosecutor and judicial police officer;

1. The statement in each written statement made by the judicial police officer in the form of the statement made by the prosecutor, the designated person, the knickite, the yellow knick, the yellow kn's kn's kn's kn's kn's kn's kn's kn's kn's kn's kn's kn's kn' k

1. Judicial Police Officers cited a statement of the draft of inspection of the body of each and existing panty, stop, stop, stop, stop, inserting, and locking each record of seizure recorded in the record of the preparation of handling affairs by judicial police officers.

However, the records are examined.

(1) The Defendant consistently committed the above crime in the court of first instance after the prosecutor’s investigation, and on the suspect examination record prepared for handling affairs by judicial police officers, there was a confession statement about the above crime, but the Defendant consented to the confession in the court of first instance as evidence.

(2) Examining the record of verification in accordance with the procedure for the preservation of evidence (76 seconds case) by a judge, it is evident that the suspect's confession at and near the scene, the suspect's statement on the main part of the case, the guardian's statement on the second part, the fluor, and the fluorite's statement on the second part, and the fact of the crime can be acknowledged in light of this, and the fact of the crime can be acknowledged as the main basis for recognizing facts of crime. Thus, it cannot be claimed through the method for preserving evidence, and the suspect's statement in the record of the preservation of evidence cannot be admissible (see Supreme Court Decision 68Do1458 delivered on December 3, 1968, Supreme Court Decision 72Do2104 delivered on November 28, 1972). The part on the record of the examination of evidence which stated the suspect's statement on the 60th day after the first instance court's adoption of the whole record of evidence, and it is hard to see that it violated the evidence evidence of the victim's new evidence.

(3) According to the first instance court's reasoning, the police officer, and the first instance court's statement adopted as evidence are merely 14:00 the victim's high field of 1976 May 26, 197 that the defendant had been involved in this case, and it seems that the defendant appeared as a critical material in this case, and the defendant's statement was able to be used as evidence for conviction. First, the defendant's statement was the same as the 1st court's 6th court's statement on the suspect's 6th court's 19th court's 6th court's 19th court's 6th court's 6th court's 6th court's 6th court's 6th court's 6th court's 6th court's 6th court's 14th court's 6th court's 6th court's 6th court's 6th court's 19th court's 6th court's 6th court's 6th court's 10th court'

(4) In light of the record of each interrogation as to the person who is the largest witness in accordance with the procedure for the preservation of evidence (76 seconds14 case), the fact that the police stated that the suspect was at the seat of 18:00 on May 26, 1976 that the suspect was at the seat of 18:00 on the same day that the suspect was at the seat of 16:00 on the same day, and that the suspect was at the seat of 16:00 on the same day and that the designated person's statement at the court of first instance and the police around 17:00 on the same day, it is difficult or insufficient to view that the defendant was at the seat of 30 minutes on his own orchard and that there was a conversation for 30 minutes on the part of the designated person.

(5) 사법경찰관 사무취급작성의 각 압수조서는 본건의 증거로 제시한바 없고(공판기록 제75-78장) 그 각 압수조서의 기재에 의하더라도 팬티, 수건, 새끼는 피해자의 사체를 발굴 검증하는 자리에서 피해자의 입에 물려있던 팬티와 같이 매장한 수건, 새끼를 사건의 참고자료로 삼고저 유족의 제시를 받아 압수한다하고 삽은 피의자가 범행후 사체를 매장할 때 도구로 사용하였던 것으로 추측 기히 수거해 놓은 삽을 피의자의 범행사실 자백에 따라 이를 제시한바 동삽으로 매장한 곳을 파낸 삽이라고 진술하므로 압수한다하고, 잠바는 피의자가 범행시 착용했던 잠바를 범행 귀가후 피의자가 마루 위 천정에 은익하였다고하는 자백에 따라 현장에서 이를 수거 제시하니 동잠바가 범행시 착용한 것이라고 진술하므로 압수한다고 기재되어 있는바 (수사기록제12-17장) 사법경찰관 사무취급 조홍규 작성의 실황조사서 (수사기록 제25-38장)의 기재에 의하면 피해자가 매장된 장소를 발굴하여 흙을 걷어낸바 사체는 엎어져 있고 얼굴밑에 피해자의 빤쓰, 바지, 치마가 무릅부분 밑에 피해자의 수건이 깔려있었다는 것이므로 팬티가 피해자의 입에 물려 있었다는 위 압수조서의 기재는 믿어지지 아니하고 그 팬티와 수건은 피해자 소유의 것일 뿐이고, 삽이나 잠바에 관한 압수조서의 기재는 위에서 본바와 같이 증거로 함에 동의하지 아니하여 증거능력이 없는 피고인의 경찰진술에 의하여 이루어진 것일뿐 아니라 위 사법경찰관 사무취급작성의 실황조사서의 기재에 의하면 사체를 매장한 구덩이를 팔때 손으로 판것은 아니나 사용한 도구가 삽인지 아닌지는 흔적이 잘 나타나지 아니하여 알수 없었다는 것인즉 피고인 소유의 위 삽이 본건 사체유기의 범행에 사용되었다고 단정하기는 어렵다.

(6) According to the draft of the most general examination of the deceased's body (section 11 of the Investigation Record), each statement of the above cryp, the designated person, the white name, and the tearer, etc., which can be deemed to have appeared in the 14th hour-based relationship between the date of the death of the victim and the date of the death of the victim, shall be determined from 2.5.26 p.26 p.27.17 p.m.., so that the crime of this case was committed at the time of May 26, 1976, may not be expressed any doubt. In this case, each statement of the above cryp, the value of the evidence shall be deemed to be more and more severe.

(7) The statement statement of a person at the first instance trial other than this is merely a victim's family or relative, or a person's discovery of the body of the victim, and it is not a direct evidence to recognize that the defendant committed this case, and it is extremely lacking in supporting evidence.

Despite this, the court below, with the evidence cited by the judgment of the court of first instance, affirmed the measures that found the defendant guilty of rape, bodily injury, murder, or abandonment of the body of the defendant, and eventually, it is against the rules of evidence that recognized facts by the evidence without probative value or without probative value, and affected the judgment because the court below erred in the lack of reason to recognize facts by insufficient deliberation. Thus, the arguments are reasonable.

Therefore, without any need to decide on the remaining grounds of appeal by the above counsel, we reverse and remand the original judgment under Articles 391 and 397 of the Criminal Procedure Act. It is so decided as per Disposition by the assent of all participating judges.

Justices Hah- Port (Presiding Justice)