[1] The intent of denying the admissibility of evidence of a non-Voluntary statement, and the burden of proving its voluntariness (=public prosecutor)

[2] The case holding that the protocol of statement is inadmissible on the ground that there is a circumstance to suspect the voluntariness in case where it is sufficient for a person who is a separate guard to be summoned 270 times or more for about one year and three months to be summoned to the prosecutor's office, and there is a possibility that the person in a situation where the person should depart from the Republic of Korea was investigated at the latest or the following day, or the person in a situation where the person should depart from the Republic of Korea was investigated by psychological pressure, and the prosecutor did not prove the intention of voluntariness.

[3] Binding force against the Re-appeal Court

[1] The purpose of denying the admissibility of evidence of a false statement is to prevent in advance any unlawful and unfair pressure that infringes on the fundamental human rights of the person who has made a statement, regardless of the authenticity of the statement, as the statement itself, which was made under a dangerous condition that causes or is likely to cause a false statement, is likely to cause misjudgments because it does not fit the substantive truth, and thus, it is necessary to prove that there is a reasonable and detailed fact to suspect the voluntariness when there is a dispute over its voluntariness, and to prove that the prosecutor removes the question of the volun

[2] The case holding that each of the above statements is inadmissible on the grounds that it is doubtful that if it is possible for a person who has been detained in a separate case to have been summoned 270 times or 3 months in a year and 13 months and investigated the new wall at the latest or following day, he was summoned to the public prosecutor's office at the latest or at the latest, he appeared to have made an excessive physical use, lack of water surface, and psychological pressure, and his family members had applied for permanent residence in the United States, and his family members had been in a situation where they must depart to the United States as the means of detention or prohibition of departure, etc., and he was found to have made a statement under psychological pressure or mental pressure, and there is a circumstance to suspect their voluntariness, but the public prosecutor did not prove his intention to resolve his voluntariness.

[3] The court which received the reversal and return shall be bound by the factual and legal judgment based on the grounds for reversal, and in a case where a new appeal is filed against the judgment rendered based on the same, the court of final appeal that rendered the final appeal shall not change it since it is bound by the judgment based on the aforementioned grounds for reversal.

[1] Article 317 of the Criminal Procedure Act / [2] Article 317 of the Criminal Procedure Act / [3] Articles 391, 397 of the Criminal Procedure Act, Article 8 of the Court Organization Act

[1] Supreme Court Decision 97Do3234 delivered on April 10, 1998 (Gong1998Sang, 1400) 98Do3584 delivered on January 29, 199 (Gong1999Sang, 414) Supreme Court Decision 99Do490 delivered on January 21, 200 (Gong2000Sang, 530), Supreme Court Decision 2001Do3931 delivered on October 8, 2002 (Gong2002Ha, 2758) / [3] Supreme Court Decision 87Do294 delivered on April 28, 198 (Gong1987, 929)

Defendant

Defendant

Law Firm Sejong, Attorneys Kim Jong-Gyeong et al.

Supreme Court Decision 2001Do7173 Delivered on March 14, 2003

Seoul High Court Decision 2003No793 delivered on January 7, 2004

The appeal is dismissed.

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

1. Regarding ground of appeal No. 1

A. The facts of the judgment below after remand

According to the reasoning of the judgment below after remanding, the court below rejected the defendant's request by the non-indicted 1 to the non-indicted 3's office and the non-indicted 1's office to the non-indicted 4's office and to the non-indicted 3's office to be selected as the non-indicted 1's office and the non-indicted 3's office to be selected as the non-indicted 4's office and the non-indicted 1's office to be used by the non-indicted 4's office and the non-indicted 4's office to be used by the non-indicted 1's office and the non-indicted 3's office to be selected as the non-indicted 1's office and the non-indicted 4's office to be used by the non-indicted 1's office, and the defendant's office to be used as the non-indicted 1's office to be the non-indicted 1's office and to be decided as the non-indicted 1's office.

After remanding, the lower court’s determination seems to be premised on the admissibility of all of the written statements of Nonindicted 1 and Nonindicted 4 prepared by the prosecutor among the evidence admitted by the first instance court as evidence of guilt.

B. Appropriateness of the lower judgment’s finding of facts after remand

(1) First, we examine the admissibility of each written statement prepared by the prosecutor against Nonindicted 1 and Nonindicted 4.

(A) The purport of denying the admissibility of evidence of a false statement is to prevent in advance any unlawful and unfair pressure that infringes on the fundamental human rights of the person who has made a statement, regardless of the authenticity of the statement, as the statement itself, which was made under a dangerous condition that causes or is likely to cause a false statement, is likely to cause misjudgments because it does not fit the substantive truth, and thus, it is necessary to prove that the prosecutor has to prove that there is a reasonable and detailed fact to suspect the voluntartariness when there is a dispute over the voluntariness, rather than to prove that there is the intention of the voluntariness. (See Supreme Court Decisions 97Do3234 delivered on Apr. 10, 1998; 98Do3584 delivered on Jan. 29, 199, etc.).

(B) The record reveals the following facts as to the prosecutor’s investigation process on Nonindicted 1 and Nonindicted 4.

① Nonindicted 1 was detained on June 10, 1998 on the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with respect to the case where he received approximately KRW 95.9 billion from the Korea Real Estate Trust Co., Ltd. in an unlawful manner, and was prosecuted on June 26, 198.

② Since June 27, 1998 to October 5, 1999, the prosecutor summoned Nonindicted 1, who is in the process of investigating almost every day from June 27, 1998, to the prosecutor’s office, summoned Nonindicted 1 to 270 times or the prosecutor’s office, and let him return to the detention center at night or following the night. Nonindicted 1’s written statement, etc., written between him, was used as evidence, and prosecuted Nonindicted 5 as a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes.

③ When Nonindicted 5 filed a claim for confirmation of unconstitutionality with respect to the exercise of the prosecutor’s power, the Constitutional Court confirmed that Nonindicted 1’s summons against Nonindicted 1 from November 12, 1998 to July 20, 199 claimed by Nonindicted 5, which was the following day after Nonindicted 1 adopted as a witness of the Defendant’s instant case, among the summons against Nonindicted 1 by the prosecution, was unconstitutional, since Nonindicted 5 violated the right to a fair trial against Nonindicted 5.

④ Each written statement of Nonindicted Party 1 prepared by the prosecutor as evidence in the instant case was prepared three times between September 1, 1998 and November 18, 1998, and Nonindicted Party 1 was frequently summoned to the prosecutor’s office, and it was difficult to return to the detention center on the following day at night or the following day.

⑤ On the other hand, Nonindicted 4 was investigated by the first prosecutor’s office on September 9, 1998, and prepared the first protocol of statement on September 10, 1998, and prepared the second protocol of statement on September 10, 1998 following the second protocol of statement, and finally prepared the third protocol of statement on September 26, 1998.

6. After remanding Nonindicted 4, at the lower court’s trial, Nonindicted 4 had no choice but to look at Nonindicted 1’s permanent departure from the prosecution by 0,00, Nonindicted 1 and Nonindicted 3, who had no choice but to take a look at the same time as that of Nonindicted 3’s permanent departure from the prosecution. Nonindicted 1 and Nonindicted 3, who was not aware of the fact that he/she was affiliated with Seoul, had no choice but to take care of, and had no choice but to, the fact that he/she was able to unfold, with the outside and uneasy, until 12:0, he/she had been detained by Nonindicted 1 and Nonindicted 4, who had no choice but to take care of, and had no choice but to, the reason for his/her temporary departure from the prosecution at the time of his/her departure from the prosecution. As such, Nonindicted 6 and Nonindicted 1 were forced to make a new statement by 10,000 his/her family members, which he/she had no choice but to have been detained by 10.

④ Nonindicted 4 left the Republic of Korea on September 30, 1998 and returned to the Republic of Korea on November 15, 1998. Meanwhile, Nonindicted 1 started the detention house on September 9, 1998 when Nonindicted 4 prepared the first written statement at the prosecutor’s office and went to the prosecutor’s office on September 9, 1998, and returned to the detention house on the following day. Nonindicted 4 was investigated by the prosecutor’s office. At the same point of view, Nonindicted 4 was investigated by the prosecutor’s office, and thus, Nonindicted 4’s statement that the first and second examinations were conducted on September 10, 1998 seems to be true.

④ As above, Nonindicted 4 was subjected to personal solicitation during the investigation process, and on August 11, 2003, at the time of the National Human Rights Commission of Korea, filed a petition against the investigation prosecutor and investigator (However, it seems that the period of filing a lawsuit is dismissed as a matter of course).

(C) As seen earlier, Nonindicted 1’s written statement submitted as evidence in this case was detained separately at the time of the preparation of the prosecutor’s statement, and it appears that Nonindicted 1 made an excessive physical use, water surface shortage, and psychological pressure in view of the frequency and frequency of summons as above recognition, investigation time, etc., and Nonindicted 4’s written statement in detail, which Nonindicted 1’s witness at the court of original trial after remanded the case, there is a circumstance to suspect the voluntartariness, and since the prosecutor failed to prove the proof of voluntariness, it is inadmissible (as for Nonindicted 1’s written statement prepared at the same time in relation to Nonindicted 5’s case of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (as for Nonindicted 5’s written statement of prosecutor’s office, the admissibility of evidence is in violation of Article 3931 of the Act on the Aggravated Punishment, etc. of Specific Crimes).

Meanwhile, at the time of preparing the first and second statement by the prosecution, Nonindicted 4 was examined for the first time in the instant case, but it appears that Nonindicted 4 made a statement under physical or mental pressure when he was investigated for more than 30 hours. Furthermore, Nonindicted 4, when Nonindicted 1 was selected as a private business operator, was given a contract for human test construction from Nonindicted 3 and introduced Nonindicted 1 to the Defendant. (This is recognized as Nonindicted 4.) as at the time of departure in the U.S., even when the investigator was issued a disposition of prohibition of departure, it is sufficient for him to look at or pressure Nonindicted 4 as a means of detention or the continuation of prohibition of departure. Thus, there is sufficient reason to suspect the voluntariness of the statement prepared by the prosecutor, and since Nonindicted 4 did not have any physical pressure to prove his voluntariness at the time of departure, it cannot be said that there was no evidence of evidence at the time of making the statement in the first and second statement.

(2) Next, we examine whether the remainder of the evidence presented by the first instance judgment, including Nonindicted 1’s legal statement, can be found guilty of the facts charged.

First, after the judgment of conviction was rendered on his criminal case, Nonindicted 1 appeared at the first instance court and the court of original judgment three times before the remand and made statements consistent with the facts charged. Since October 10, 1999, Nonindicted 1’s access to the defendant was removed from military prison, it appears that there was no reason or motive to harm the defendant, and Nonindicted 1’s above statements are consistent with Nonindicted 8 and Nonindicted 9’s respective statements at the prosecutor’s office, and there is no inconsistency with Nonindicted 1’s credibility in light of the following: (a) Nonindicted 1’s testimony at the first instance court and the court of original judgment before remand; and (b) Nonindicted 1’s testimony at the prosecutor’s office was consistent with the first instance court; (c) Nonindicted 1’s testimony at the first instance court and the court of original trial; (d) Nonindicted 7, Nonindicted 8, and Nonindicted 9’s testimony at each of the former prosecutor’s offices; and (e) Nonindicted 1’s testimony at each of the first instance judgment and the first instance judgment’s statements at each of the first instance judgment are hard to accept.

C. Sub-committee

Therefore, the judgment of the court of first instance that recognized the admissibility of each written statement prepared by the prosecutor against Nonindicted 1 and Nonindicted 4 and maintained the judgment of the court of first instance that admitted it as evidence of guilt would be erroneous in the misapprehension of the legal principles as to the discretion of the statement and the admissibility of evidence. However, the remaining evidence that the judgment of the court of first instance admitted as evidence of guilt is sufficient to find guilty of the facts charged. Accordingly, it is justifiable in the conclusion that the court below affirmed the judgment of the court of first instance after remand. The judgment of the court of first instance after remand did not err in the misapprehension of the rules of evidence,

2. Regarding ground of appeal No. 2

The court, which received the reversal and return, shall be bound by the factual and legal judgment based on the grounds for reversal, and in case where a second appeal is filed against the judgment rendered based on that judgment, the court of final appeal that rendered the final appeal shall be bound by the judgment based on the aforementioned grounds for reversal (see, e.g., Supreme Court Decision 87Do294, Apr. 28, 1987).

According to the reasoning of the judgment below after remand, the judgment of the court below after remand recognized the facts identical to the facts recognized in the judgment of remand, and judged that the amount of this case is related to or quid pro quo to the defendant's duties. The above judgment of the court below after remand is just as a measure based on the grounds for reversal of the judgment of remand, and it cannot be judged differently from the above grounds for reversal as a party member who tried again the appeal case. Accordingly, the ground for appeal No. 2 is without merit.

3. Conclusion

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

Justices Shin Hyun-chul (Presiding Justice)