The case rejecting the admissibility of the suspect examination of the defendant prepared by the prosecutor

The first and second newspapers of the prosecutor's defendant 2 are not prepared in the prosecutor's office, but prepared in the smuggling joint investigation team located in the Busan Customs office, so the voluntariness of the prosecutor's defendant 2 can not be adopted as evidence.

Article 312

Supreme Court Decision 70Do2449 delivered on February 8, 1971 (Supreme Court Decision 9462 delivered on September 19, 197, Supreme Court Decision 19Nu31 delivered on April 20, 199, Supreme Court Decision 19Da312(7) delivered on July 2

Defendant 1 and one other

Prosecutor and Defendants

Busan District Court (66Da3092, 3504)

Of the judgment of the court below, the part concerning Defendant 2 shall be reversed.

Defendant 2 shall be punished by imprisonment with prison labor for one year.

One hundred and twenty-five days of detention prior to the sentence of the original judgment shall be included in the original sentence.

Of the facts charged against Defendant 2, Defendant 2 is acquitted.

The prosecutor and the defendant 1's appeal are dismissed.

First, as to the misunderstanding of the facts regarding Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, the Defendant’s defense counsel erred by misapprehending the legal principles on habitual crimes or by misunderstanding the facts without admissibility, and thereby violating the Act on the Aggravated Punishment, etc. of Specific Crimes. In other words, despite the fact that the Defendant’s statement at the prosecutor’s office was made a harsh adviser at the same time, it is difficult to say that the prosecutor’s examination protocol was used as evidence in a criminal case requiring strict evidence, and that it was used as evidence for conviction against the Defendant by misunderstanding of facts and application of the Act on the Aggravated Punishment, etc. of Specific Crimes by misunderstanding of the legal principles on habitual crimes or by misunderstanding of facts, and thus, it is sufficiently established that the court below erred by misapprehending the legal principles on the Aggravated Punishment, etc. of Specific Crimes against Defendant 1 and Nonindicted Party 2’s testimony and application of the Act on the Aggravated Punishment, etc. of Specific Crimes, despite the fact that the lower court’s statement was based on one-year and 13 months evidence.

The summary of the grounds for appeal against the defendant et al. by the prosecutor is that the defendant et al. should be punished by imprisonment for five years after recognizing all the facts constituting the crime against the defendant et al., but the defendant et al. has been punished by imprisonment for five years. However, the defendant et al. may not take into account the motive or result of the crime, and the circumstances are not likely to be taken into account, and the punishment against the defendant et al. should be isolated for a considerable period of time as permitted by the Act from the general preventive point of view of the crime. However, the summary of the grounds for appeal against the defendant et al. is unreasonable because the amount of the punishment against the defendant et al. is so unreasonable as to be determined within the prescribed period of punishment in violation of the Customs Act, and it is difficult to view that the court below's decision that the suspension of the execution of the punishment is very heavy when considering the motive, age of the defendant et al., the age of the defendant et al., the character and character, the motive of the defendant et al., and the records.

Although Defendant 2’s defense counsel did not commit the crime as indicated in the judgment of the court below, the court below alleged that Defendant 2 erred in adopting evidence and affected the judgment by misunderstanding that Defendant 2 committed the crime as indicated in the judgment of the court below. Thus, among Defendant 2’s party process and the statement in the court below’s process, the part of the statement consistent with the above facts among Non-Indicted 3’s statement in the first instance trial witness’s statement, and the part of Non-Indicted 3’s statement in the same manner, the part of Non-Indicted 3’s violation of the Customs Act at the Busan District Court of 10:0 on July 1, 1966, which was verified by a member of Non-Indicted 3’s violation of the Customs Act, it can be sufficiently recognized, but the judgment of the court below cannot be accepted as evidence for the defendant’s non-indicted 2’s statement and it cannot be accepted as evidence for the defendant’s non-indicted 4’s non-indicted 2’s statement in the second instance court’s protocol.

Criminal facts

Defendant 2 was aware that Nonindicted 3 conspired with Nonindicted 2, 8, and 9 was attempting to import Japanese goods in collusion with Nonindicted 2, 8, and 9, but the participation was made on January 20, 1965, Nonindicted 2, who purchased the said goods from Nonindicted 3 to the captain of the Busan Western-dong Port, and Nonindicted 8, as the captain of Nonindicted 9, as the head of the deck, departing from the port to the head of the Defendant on deck, and he was 06:0 Japan 10 on the 21st day following the following day on which Nonindicted 3 was able to import Japanese goods into the port of 10,000, and he was carrying the entire goods from Nonindicted 3 to the port of 150,000 on the 7th day after the day after the arrival of the case to the head of the office, and he was carrying the entire goods from Nonindicted 3 to the 150,000 U.S. 2,500 Do 2500 Do 3400 Do 140.

The facts of the judgment above are examined, and the facts of the judgment above

1. Among the statements made by Defendant 2 in the party process, the part of the statement that he was on the date and time of the ruling and passed to Japan; and

2. The part of the statement made by Nonindicted Party 3 in the party process, which is consistent with the above holding, among the statements made by Nonindicted Party 3

3. The part of the statement made in accordance with the judgment among the statement made by the defendant non-indicted 3 in the trial records dated July 1, 1966, which was verified by the commissioned judge of the party members of Busan District Court (the appellate court 66No4299, the appellate court 66No4299) against the defendant non-indicted 3

4. In full view of the statements made by Non-Indicted 12 in the party proceedings and the statements made by Non-Indicted 12 in accordance with the judgment, the evidence is sufficient.

법률에 비추건대, 피고인의 판시 소위는 관세법 제198조 제1항 해당하므로 소정형 중 유기징역형을 선택하고 그 형기범위안에서 피고인을 징역 1년에 처하고 형법 제57조 에 의하여 원심판결 선고전의 구금일수 중 125일을 위 본형에 산입하고 위 판시 밀수입한 물품은 공소외 3이 자금을 투입하여 구입한 동인 소유의 물품으로서 동인이 선장 공소외 2를 시켜 구입 운반한 것을 전부 처분하여 동 금액을 소비하였으므로 동인에 대한 판결로써 동인으로부터 이를 추징하는 판결이 선고되었고 피고인은 이를 소유 또는 점유하고 있지 아니함이 명백하므로 피고인에 대하여 특히 이에 대한 추징을 하지 아니하는 것이다. 피고인 2에 대한 공소사실중 피고인 2는 공소외 5, 6, 13 및 피고인 1등과 상호 공모하여 면허없이 일본국 대마도로부터 밀수입할 것을 기도하고 전기 공소외 6은 밀수자금으로 일화 5만엔을 염출하고 피고인 1등은 밀수품을 운반키로 하고 피고인은 물품양륙업무를 각 분담한 후 1966.3.22. 17:00 부산시 서구 암남동 소재 혈청소 앞 해안에서 밀수 전용선 보덕호소구 8마력 발동선에 피고인 1이 선장으로 공소외 5가 사무장으로 공소외 13이 기관장으로 태워 동 소를 출항케하여 동인 등은 그 익일 정오경 대마도 이즈하라에 입항하여 9일간 머물다가 동소 소재 공소외 14가 경영하는 산전상회로부터 일본제 화장품인 환대이숑 도-랑 및 크림등 8개 상자와 피고인 1의 개인 휴대품으로 일본제 뺀치 2개 전기인두 1개등 도합 감정 원가 금 205,605원 20전 상당을 구입 선적하여 동월 31일 11:00 동 소를 출항한 후 동일 24:00 부산항 오륙도 앞 해안까지 운반케 하여 공소외 6이 타고 나온 전마선에 전기물품중 6개 상자를 옮겨 실어주어 이를 부산시 영도구 청학동 해안에서 피고인과 같이 양륙하고 잔여물품은 동구 소재 조도안해안에서 양륙함으로써 상습적 또는 집단적으로 밀수입함과 동시 동 물품에 대한 관세전부인 금 404,873원 94전을 포탈한 것이라는 점에 대하여 살피건대, 앞에서 인정한 바와 같이 피고인 2가 이에 가담하였다는 사실을 인정할 만한 증거없으므로 결국 범죄의 증명이 없다 하여 형사소송법 제325조 에 의하여 이 부분에 대하여는 피고인 2에게 무죄의 선고를 하는 것이다.

It is so decided as per Disposition with the above reasons.

Judges Kim Young-ro (Presiding Judge) Park Jae-ho