Whether the provision of Article 312(2) of the Criminal Procedure Act on the limitation of admissibility of an interrogation protocol prepared by the investigative agency other than the prosecutor applies to the relationship with other accused who is accomplices.

The provisions of Article 312 (2) of the Criminal Procedure Act are applied not only to the case where the interrogation protocol prepared by investigation agency other than the prosecutor of the defendant in question is admitted as evidence of guilt, but also to the case where the investigation agency other than the prosecutor of other defendant or the suspect in relation to the defendant is admitted as evidence of guilt.

Article 312(2) of the Criminal Procedure Act

Supreme Court Decision 79Do287 Decided April 10, 1979 84Do505 Decided October 23, 1984

Defendant

Defendant

Attorney Lee Sung-hoon

Seoul High Court Decision 86No1502 delivered on July 15, 1986

The appeal is dismissed.

The number of detention days after an appeal shall be included in the imprisonment.

The defendant and defense counsel's grounds of appeal are also examined.

1. Article 312(2) of the Criminal Procedure Act strictly limits the admissibility of an interrogation protocol of a suspect prepared by an investigative agency other than the prosecutor's statement of the defendant who was a suspect at a preparatory hearing or during a public trial. This provision also applies to the case where the interrogation protocol of a suspect prepared by an investigative agency other than the public prosecutor is used as evidence of guilt as well as the case where the interrogation protocol of a suspect prepared by the investigative agency other than the public prosecutor of the defendant or the suspect in relation to the defendant is adopted as evidence of guilt against the defendant (see Supreme Court Decision 79Do287, Apr. 10, 1979; Supreme Court Decision 84Do505, Oct. 23, 1984).

In addition, the reason why the admissibility of the protocol of interrogation prepared by the investigation agency other than the co-defendant in relation to the defendant or the suspect is to be strictly restricted pursuant to Article 312(2) of the Criminal Procedure Act, and its contents are different from the contents of the protocol of interrogation of the defendant in question. Thus, it is reasonable to view that the admissibility of the protocol of interrogation prepared by the investigation agency other than the prosecutor in relation to the defendant or the suspect as co-defendant in relation to the defendant, and it is not possible to grant the contents of the protocol of interrogation of the defendant in question.

In a case where a criminal trial is held separately when a suspect who made the original statement without viewing it as above and left the court of a criminal case against the defendant and recognized the contents thereof, if the criminal trial is held separately, the criminal case against him/her may be denied in the court of law and may lead to an unreasonable and unfair result that may be evidence of guilt in relation to other accused who is not proven guilty. In addition, if it is deemed that the criminal case against him/her is a criminal case against another accused, and if it can be admitted as evidence of another accused's criminal case on the ground that the suspect or his/her defense counsel acknowledged the contents of the criminal case against him/her, it shall not be admitted as evidence. If his/her defense counsel admitted the contents of the protocol of interrogation of suspect for the suspect, the criminal case against him/her shall not be admitted as evidence, but if his/her defense counsel admitted the contents of the protocol of interrogation of suspect.

2. The record reveals that each protocol of interrogation of suspect 1 and 2 prepared by a judicial police officer among the evidence admitted by the court below to acknowledge the criminal facts of the defendant of this case is a document that did not consent to the defendant or his defense counsel as evidence, and this is the same as the purport that the contents of the protocol of interrogation of suspect interrogation is not acknowledged. Since the protocol of interrogation of suspect interrogation is about the defendant and accomplices, it is against the law that the court below's adoption as evidence of guilt

However, considering the record, it can be sufficiently recognized that there is only other evidence of the court below including the interrogation protocol of suspect 1 and 2 prepared by the prosecutor except for the interrogation protocol of suspect 1 and 2 prepared by the judicial police officer. Thus, the above law pointing out the place of appeal does not affect the conclusion of the judgment of the court below, and it cannot be argued that the process of collecting evidence is in violation of the rules of evidence, such as the theory of lawsuit.

3. Therefore, the appeal shall be dismissed, and part of the detention days prior to the judgment shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee B-soo (Presiding Justice)