In a case where a witness did not have a fixed residence at the time when the investigative agency made a statement in an investigative agency, or where it is impossible to serve a summons by stating the resident registration place which is not the actual domicile in the protocol of statement as his/her domicile, and the request for detection of his/her domicile was made but his/her whereabouts cannot be known, whether the person who requires a statement, as prescribed in Article 314 of the Criminal Procedure Act, is unable to make a statement due to death, illness, or other causes (affirmative)

Inasmuch as a writ of summons for a witness is impossible to be served and the location of the witness was commissioned to detect the witness several times, it constitutes a case where a person who requires a statement, as stipulated in Article 314 of the Criminal Procedure Act, is unable to make a statement in the official ruling due to death, illness, or any other reason, and even if the witness, etc. was under circumstances that he/she frequently moved his/her address without a fixed residence at the time when he/she made a statement in an investigative agency, it does not change even if the investigative agency did not take measures to identify the person's address in preparation for a case where the witness's statement is needed later, or if the person entered his/her domicile which is not the real domicile in the

Article 314 of the Criminal Procedure Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant)

Defendant

Prosecutor

Attorney Jil-dong

Seoul High Court Decision 98No293 delivered on June 9, 1998

The appeal is dismissed.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below held that the victim's statement record and each statement of the victim's handling of affairs concerning judicial police officers among the suspect interrogation protocol of the defendant prepared by the prosecutor as to the defendant prepared by the judicial police assistant submitted by the prosecutor is inadmissible as well as that there is no probative value. The summary of the judgment below

A. In order to use the above statement which falls under the protocol under Article 312(1) of the Criminal Procedure Act as evidence, two requirements of necessity and credit guarantee under Article 314 of the same Act shall be met. In this case, when a person who needs to make a statement at a preparatory hearing or on a public trial date is unable to make a statement because of death, illness, or other causes, the requirement cannot be interpreted simply as satisfied in all cases where the location detection is impossible. However, in case of preparation of a protocol or document, it cannot be interpreted that there is no possibility that the person who was engaged in a normal occupation in his/her place of residence and who was not expected to leave his/her place of residence for unavoidable reasons at the time when he/she was adopted as a witness has already left his/her place of residence for unavoidable reasons, and there is no possibility that the statement or document will be admissible as evidence after considering whether the credibility is guaranteed, and in particular, when the statement or document was made under particularly reliable circumstances, it shall be determined whether there is any possibility that the statement or document be false or false credibility or ariness.

B. However, according to the records, while investigating the victim at the police station, the victim had been temporarily staying in Bhutan for employment at the time of departure. It is objectively clear that the business owner had the position to file a complaint, and there is no reason to return to Bhutan, and even though the defendant actively denied the crime and it is anticipated that the testimony at the court would be needed, the police may terminate the investigation without any other contact method and without any other contact method. However, the police did not enter the contact point of the victim in the above non-indicted 1, and it can be acknowledged that the victim was unable to make a statement at the time of arrival or contact with the prosecutor after the lapse of the above non-indicted 1's address. In light of the above circumstances, it is doubtful that the victim's address could not be seen as having been confirmed that the victim's address was unknown after the arrival of the above non-indicted 1's new disease or contact point, and it cannot be seen as having been sent to the original person's address without any contact with the defendant at the time of departure.

Therefore, the above protocol is not recognized to be genuine by the above victim's statement, which is the original person making the original statement at a preparatory hearing or during a public trial, and it does not meet the necessity of Article 314 of the same Act and the requirements for circumstantial guarantee of credibility, and thus it constitutes an exception of admissibility.

Even if it is interpreted that the admissibility of family affairs and the above protocol is recognized, the above victim stated that he had been raped by the same person for three consecutive days at night while working as an employee in the state of multiple employment. The records do not seem to have exercised any tangible force, such as confinement, etc. on the day, and that no request for rescue was made at any time during rape under Articles 1 and 2 of the decision of the court below. In the case of rape under Article 3 of the decision of the court below, even if the victim's statement is based on the victim's statement, it is not a circumstance for the victim to attempt rape, and it is difficult to view that the victim's statement that he had never known that he had been rape at all at the time of this Decree, and that it is hard to view that he has credibility other than that for the second time of rape under Articles 2 and 3 of the decision of the court below.

C. According to the records, the first instance court's request for the detection of the case at 201 Sil-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-sak-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-n-n-n-n-n-n-n-n-).

2. In light of the legal principles on the admissibility of evidence of records and hearsay evidence, the above determination by the court below is justified and acceptable.

However, as stated in the reasoning of the judgment by the court below, since the first instance court and the court below did not serve a summons of a witness with respect to the above victims and Lee Young-young on several occasions and requested the detection of their whereabouts, it constitutes "where a person who requires a statement" under Article 314 of the Criminal Procedure Act cannot make a statement due to death, illness, or any other reason, and even though the above victim, etc. was under the circumstances where he frequently moved his address without a fixed residence at the time of the statement in an investigative agency, it is erroneous that the court below did not take a way to identify his address in preparation for the case where the investigative agency's subsequent statement is required, or it does not change because the court below stated his domicile other than the real domicile in the protocol of statement as his domicile, it does not constitute "when the original person cannot make a statement in the court court" under the above provision for the above reasons.

However, pursuant 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, two requirements must be met that the preparation of the statement or documents must be made under particularly reliable circumstances, except for the requirement that the person who requires a statement should be present in the official ruling and make it impossible to make a statement due to death, illness, or any other cause. As to this point, the court below determined that the statement cannot be used as evidence on the ground that the victim's statement was made under particularly reliable circumstances on the ground that the victim's statement was made under particularly reliable circumstances on the ground that the court below's statement cannot be used as evidence on the ground that the statement was made under the circumstances as mentioned above, but it is just in light of the records, and it cannot be said that there is any error of law that affect the judgment.

In addition, in light of the records, even if the court below recognizes the admissibility of the statement of the victim and the Lee Young-young, it is just that the court below has no probative value on the ground that there is a doubt about its credibility, and there is no violation of the rules of evidence as alleged in the grounds of appeal.

Ultimately, the grounds for appeal are without merit.

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

Justices Lee Yong-hun (Presiding Justice)