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(영문) 서울고등법원 2018.07.26 2018노458
마약류관리에관한법률위반(향정)
Text

All appeals filed by prosecutors and defendants are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) In the misunderstanding of the legal principles on admissibility of evidence, the Defendant’s defense counsel stated this part of the allegation in the reasoning of appeal, stating that “the lower court has any defect in the examination of evidence, which makes it difficult for the appellate court to maintain.”

Accordingly, this part of the claim is difficult to be specified as one of the grounds for appeal prescribed in Article 361-5 of the Criminal Procedure Act.

However, in light of the purport of the assertion, this part of the assertion is to be determined by understanding that it is “when there is a violation of the Constitution of the Republic of Korea or the rules that affected the conclusion of the judgment” as stipulated by Article 361-5 subparag. 1 of the Criminal Procedure Act, namely, the assertion of misunderstanding

No. 6 of the evidence list list No. 6 of the investigation report ( rejection of search duty) evidence record 41 of the evidence record is merely a document prepared to report internal investigation processes and results, and it is not admissible as evidence.

The 42th page of the evidence list No. 7 of the investigation report (the suspect's false speech or behavior) is a document in which the defendant's statement is made, and which does not meet the requirements set forth in Article 312 of the Criminal Procedure Act, and it is inadmissible

The protocol of interrogation of suspect in the No. 10 of the evidence list No. 10 is prepared by infringing the defendant's right to refuse to make statements, and it is not admissible.

No. 11 of the evidence list list No. 11 of the investigation report (non-cooperative suspect's speech and behavior during the investigation and investigation process) is also an investigation report that practically infringes on the defendant's right to refuse to make statements, and thus, it is not admissible as evidence illegally collected.

The court below's trial procedure contains an error of law by examining the evidence as evidence in violation of the above law.

2) As to the facts charged, the confession of the accused is not sufficient to support the misapprehension of the legal principles as to the rules on the reinforcement of confession.

Nevertheless, the court below erred by misapprehending the rules on the confession reinforcement.

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