[1] Probative value of an interrogation protocol prepared by a judicial police officer against another suspect in relation to the defendant's accomplice and whether Article 314 of the Criminal Procedure Act applies (negative)

[2] Whether Article 312(2) of the Criminal Procedure Act applies to a statement prepared by a suspect at the police investigation stage (affirmative)

[1] Article 312(2) of the Criminal Procedure Act applies not only to the case where the interrogation protocol of the accused prepared by investigation agency other than the public prosecutor is admissible as evidence of guilt, but also to the case where the interrogation protocol of the accused or the suspect prepared by investigation agency other than the public prosecutor is adopted as evidence of guilt against the accused. The interrogation protocol of the investigation agency other than the public prosecutor for the accused or the accomplice who has co-offender relation with the accused is acknowledged as a authenticity by the suspect's court statement, even if it is acknowledged as a authenticity by the suspect's statement, if the defendant denies the contents of the protocol on the trial date, the admissibility of evidence is denied, and as a result, Article 314 of the Criminal Procedure Act, which exceptionally

[2] Article 312(2) of the same Act shall apply to the statements prepared by the suspect at the police investigation stage as the interrogation protocol prepared by investigation agencies other than the public prosecutor.

[1] Articles 312(2) and 314 of the Criminal Procedure Act / [2] Articles 312(2) and 313(1) of the Criminal Procedure Act

[1] Supreme Court Decision 79Do287 delivered on April 10, 197 (Gong1979, 11956), Supreme Court Decision 86Do1783 delivered on November 1, 1986 (Gong1987, 47) Supreme Court Decision 87Do1446 delivered on September 8, 1987 (Gong1987, 1602) (amended by Supreme Court Decision 93Do3612 delivered on March 22, 1994 (Gong194, 1373), Supreme Court en banc Decision 200Do661 Delivered on May 12, 200 (Gong194, 1373), Supreme Court Decision 201Do4787 delivered on November 27, 2001) 209Do28489 delivered on April 28, 209)

Defendant

Defendant

Seoul Southern District Court Decision 201Na1548

Seoul District Court Decision 2003No6640 Delivered on October 31, 2003

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

We examine the grounds of appeal.

1. As to the facts charged in this case that the Defendant, in collusion with Nonindicted Company 2, Nonindicted 3, who opened a credit card merchant with the trade name, (mutual omission), distribution (mutual omission), etc., provided funds by means of making a false sales slip of KRW 3200,00,000 in total from October 6, 2001 to April 8, 2002, the lower court found the Defendant guilty on the grounds that, except as to the evidence employed by the first instance court, “the investigation report” was changed into “the false sales slips, credit cards, receipt and processing status books, personal treatment records, personal records, personal treatment records, and copies of a request for substitute payment,” the Defendant cited the suspect examination protocol as to Nonindicted 2, Nonindicted 2 prepared by the judicial police officer, each suspect examination protocol as to Nonindicted 3, Nonindicted 2’s written statements, Nonindicted 2’s written statements, and each seizure report as it is, and based on the facts charged, it was proven.

2. Article 312(2) of the Criminal Procedure Act applies not only to the case where an investigative agency other than a public prosecutor's interrogation protocol of the accused is admitted as evidence of guilt, but also to the case where an investigative agency other than a public prosecutor's suspect interrogation protocol of the accused or suspect is adopted as evidence of guilt against the accused (see, e.g., Supreme Court Decisions 79Do287, Apr. 10, 197; 86Do1783, Nov. 1, 1986; 93Do3612, Mar. 22, 1994; 200Do661, May 12, 200; 2001Do4787, Nov. 27, 2001). Therefore, even if the accused and the accomplice are prepared as evidence of the interrogation protocol of the suspect, it shall not be admitted as evidence of the prosecutor's suspect interrogation protocol other than the Supreme Court's protocol which is admissible as evidence of the suspect, it is acknowledged as evidence.

On the other hand, Article 312(2) should be applied to the statements prepared by the suspect at the police investigation stage as the same as the interrogation protocol prepared by investigation agencies other than the prosecutor (see Supreme Court en banc Decision 82Do1479 delivered on September 14, 1982).

According to the records, each protocol of interrogation prepared by a judicial police officer against Nonindicted 2 and Nonindicted 3 who are co-offenders with the Defendant and each protocol of self-determination prepared by Nonindicted 2 and Nonindicted 3 (the same was prepared at the police investigation stage) was not consented to the admissibility of evidence by the Defendant or his defense counsel (see Supreme Court Decision 96Do667 delivered on July 12, 1996). Accordingly, in light of the above legal principles, each protocol of interrogation prepared by a judicial police officer against Nonindicted 2 and Nonindicted 3 and each protocol of self-determination prepared by Nonindicted 2 should be denied admissibility of evidence and Article 314 of the Criminal Procedure Act shall not be applied. However, the court below adopted the above Nonindicted 2 and Nonindicted 3 as a witness, but the summons was not served due to the addressee's uncertainty, etc., and it was impossible to detect the location, and it should be viewed that there was an error in the misapprehension of legal principles as to the admissibility of evidence prepared by an investigative agency other than the prosecutor, which affected the conclusion of judgment.

The ground of appeal pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) shall be delivered with the assent of all Justices Cho Jae-chul-chul, Justice Cho Jae-chul-chul, Justice Kim Yong-dam