[1] The admissibility of evidence of a suspect's statement prepared in the course of investigation by an investigative agency, such as a "statement of statement" or "statement of statement"

[2] Whether a suspect's statement made without notifying the right to refuse to make a statement is admissible (negative)

[3] The time when the prosecutor should be deemed to have become aware of a crime

[1] Article 312 of the Criminal Procedure Act / [2] Article 12(2) of the Constitution of the Republic of Korea, Articles 244-3 and 308-2 of the Criminal Procedure Act / [3] Article 2 subparag. 1, 3, and 4 of the Rules on Prosecution Affairs, Article 195 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2008Do8213 Decided August 20, 2009 (Gong2009Ha, 1579) Supreme Court Decision 2010Do1755 Decided May 27, 201 / [1] Supreme Court Decision 2007Do6129 Decided October 25, 2007 / [3] Supreme Court Decision 2000Do2968 Decided October 26, 2001 (Gong2001Ha, 2633) Supreme Court Decision 2008Do127 Decided June 24, 2010

Defendant

Defendant and Prosecutor

Attorney Jeon Young-young

Seoul High Court Decision 2010No277 decided June 17, 2010

Each appeal shall be dismissed.

We examine the grounds of appeal.

1. As to the Defendant’s ground of appeal

Examining the reasoning of the judgment below and the evidence adopted by the court below in light of the records, the court below's determination that the crime of violation of the Attorney-at-Law Act is established on the full amount of KRW 15 million by recognizing the fact that the court below promised to accept KRW 15 million from Nonindicted 2 through Nonindicted 1, an intermediary, for which the defendant can exercise influence, etc., to give and receive the public official through Nonindicted 1, an intermediary.

The court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal principles as to the establishment of a crime of violation of the Attorney-at-Law and the amount of profit,

2. As to the Prosecutor’s Grounds of Appeal

If a document or a document recording or recording a suspect's statement is prepared in the course of investigation in an investigative agency, it cannot be viewed differently from a suspect interrogation protocol even if it takes the form of "written statement, written statement, or written statement". Meanwhile, since the suspect's right to refuse to make statements guaranteed by the Criminal Procedure Act is based on the right to refuse to make statements unfavorable to himself/herself in criminal cases guaranteed by the Constitution and thus, if the investigative agency fails to notify the suspect of his/her right to refuse to make statements in advance in interrogation of the suspect, the suspect's statement should be denied even in cases where the discretion of statement is recognized as illegally collected evidence (see Supreme Court Decision 2008Do8213, Aug. 20, 2009).

In addition, according to Articles 2 through 4 of the Rules on the Administrative Affairs of the Public Prosecutor's Office, if a public prosecutor is aware of a crime, it shall undergo the procedure to prepare a written statement of offender and accept the case. Thus, barring any special circumstance, the recognition of a crime is a substantial concept, and the provisions of these Rules are provisions for the administrative convenience of the public prosecutor's office. Thus, if a public prosecutor initiates an investigation as he is suspected of a crime before taking such a procedure, it shall be deemed that the crime was recognized at the time when the crime was committed, and it shall not be deemed that the crime was established only when he prepares a written statement of offender and takes the case repair procedure (see, e.g., Supreme Court Decision 200Do2968, Oct. 26, 201).

Examining the reasoning of the first instance judgment maintained by the lower court and the record, the prosecutor submitted personal information about Nonindicted 3 who was punished for violation of the Foreign Investment Promotion Act on September 9, 2009, and changed the status of stay to D-8 (Corporate Investment), and received the registration record and the application document for change of status of stay for corporate investment from Nonindicted 4 from the Incheon Immigration Office, and received the report document from Nonindicted 4 on September 16, 2009, and received the statement that is suspected of foreign investment through telephone conversations with the person in charge of the foreign investment support team of Korea, who issued the certificate of registration of foreign-capital invested with Nonindicted 4 on September 16, 2009, and the prosecutor summoned Nonindicted 4 as witness and submitted the false document to obtain corporate investment visa at the time of questioning, and thus, the prosecutor cannot be deemed to have submitted any false document in relation to the report and investigation as evidence, and thus, it cannot be deemed to have been admissible as evidence that the prosecutor conspiredd with Nonindicted 4 and the prosecutor submitted any false document.

In the same purport, the court below's decision that maintained the first instance court that acquitted the defendant of this part of the facts charged is justifiable, on the ground that the admissibility of the statement of Nonindicted 4 was rejected, and the remaining evidence submitted by the prosecutor alone was insufficient to recognize that the defendant conspiredd with Nonindicted 4.

The court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal principles on the admissibility of the prosecutor’s protocol of statement and exclusion of illegally collected evidence, as alleged in the

3. Conclusion

Therefore, each appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)