[1] Requirements under Article 314 of the Criminal Procedure Act to use as evidence the protocol, documents, etc. under Articles 312 and 313 of the same Act

[2] Whether the case where a person who requires a statement is unable to serve a writ of summons of a witness, subsequent to the impossibility of serving a summons of a witness, and the person's location was unknown by the request for detection of location constitutes "where a person is unable to make a statement due to any other reason" as stipulated in Article 314 of

[3] The meaning of "when made under particularly reliable circumstances" as stipulated in Articles 312 and 313 of the Criminal Procedure Act

[1] Articles 312, 313, and 314 of the Criminal Procedure Act / [2] Article 314 of the Criminal Procedure Act / [3] Articles 312, 313, and 314 of the Criminal Procedure Act

[1] Supreme Court Decision 99Do800 delivered on April 27, 1999, Supreme Court Decision 2004Do3619 Delivered on May 25, 2006 (Gong2006Ha, 1202) / [2] Supreme Court Decision 2000Do1765 Delivered on June 9, 200 (Gong2000Ha, 1698), Supreme Court Decision 2005Do4586 Delivered on January 13, 2006, Supreme Court Decision 2006Do5165 Delivered on October 26, 2006 / [3] Supreme Court Decision 90Do246 Delivered on April 10, 190 (Gong190, 1102) / [3] Supreme Court Decision 2005Do93985 Delivered on May 29, 195; Supreme Court Decision 2005Do93985 Delivered on May 29, 19595

Defendant

Prosecutor

Changwon District Court Decision 2006No304 decided Dec. 5, 2006

The appeal is dismissed.

We examine the grounds of appeal.

According to Article 314 of the Criminal Procedure Act, in order to use the protocol under Article 312 of the same Act or the documents under Article 313 of the same Act as evidence, the first person who needs to make a statement must be unable to make a statement at a preparatory hearing or on the trial date due to death, illness, residence in a foreign country or other reasons, and second, the preparation of the statement or documents must be made under particularly reliable circumstances (see Supreme Court Decision 2004Do3619 delivered on May 25, 2006, etc.).

On the other hand, since a witness summons for a person who needs to make a statement at several times was not served and it was impossible to know the person's location, so the court's request for detection was made, and thus the examination in court is impossible (see Supreme Court Decision 2006Do5165, Oct. 26, 2006, etc.). Thus, in this case where the first instance court and the lower court adopted the Nonindicted Party as witness and summoned the Nonindicted Party on several occasions, but did not appear and requested the detection of the location, the court below did not know the person's location. Thus, the court below erred by holding that the court below did not constitute "where it is impossible to make a statement at a preparatory hearing or on the court date due to any other reason" under Article 314 of the Criminal Procedure Act on the ground that the court or the investigative agency did not know the whereabouts of the Nonindicted Party and could not hear the person's statement.

However, the "when made under particularly reliable circumstances," which is another requirement to obtain admissibility of evidence under Article 312 of the Criminal Procedure Act or the documents stipulated in Article 313 of the same Act, refers to cases where there is little room for false entry in the preparation of the content of the statement or the protocol or the document, and specific and external circumstances exist to guarantee the credibility or arbitability of the content of the statement. In light of the records, it is reasonable that the court below's determination that the above non-indicted's statement was made under particularly reliable circumstances is not recognized as being made under the circumstances as stated in its reasoning. Accordingly, each of the prosecutor's statements against the non-indicted is inadmissible.

Therefore, the court below's conclusion that each prosecutor's statement by the non-indicted is inadmissible is justified, and contrary to the allegations in the grounds of appeal, there is no violation of law that affected the judgment by misapprehending the legal principles on Article 314

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

Justices Lee Hong-hoon (Presiding Justice)