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(영문) 대법원 2018.12.13 2018도15705
특정경제범죄가중처벌등에관한법률위반(사기)등
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendants’ forgery of each private document, the event of the above investigation document, false entry such as public electronic records, and the event such as false electronic records, and the fraud of Defendant D and L

A. (1) In order to admissibility of the documents prepared by the F or the F’s statement as evidence pursuant to Article 314 of the Criminal Procedure Act, or the statements, documents, etc. mentioned in Article 313 of the said Act, a person obligated to make a statement must meet two requirements that the person is unable to appear and make a statement in the official ruling due to his/her unknown whereabouts in a foreign country or any other similar cause, and that the preparation of the statement or documents constitutes a case where it is proved that the preparation of the statement or documents was made under particularly reliable circumstances.

Here, “When it is proved that the preparation of a statement or document has been made under particularly reliable circumstances” as the second requirement refers to cases where there is little room for any falsity to intervene in the preparation of the contents of the statement or the protocol or document, and there is specific and external circumstances to guarantee the credibility or voluntariness of the contents of the statement (see, e.g., Supreme Court Decision 2004Do5561, Jun. 14, 2007). Article 314 of the Criminal Procedure Act provides that where the whereabouts of a person who is not the defendant is unknown, it may be granted admissibility of evidence without any opportunity of cross-examination against the person who made the original statement, etc. As such, “proof of whether the statement or document was made under particularly reliable circumstances” is insufficient to the extent that it is difficult, and there is room for reasonable deliberation (see, e.g., Supreme Court Decision 2012Do7252, Apr. 30, 2014).

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