Defendant (foreigner)

Defendant

The e-ray;

Attorney Park Dong-dong (Korean)

Seoul Central District Court Decision 2008 Godan7686 Decided June 9, 2009

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. Error of mistake

Although the Defendant knew that he was a forged credit card, the Defendant was using the credit card from Nonindicted 2, and there was no conspiracy to use the forged credit card with Nonindicted 2 and Nonindicted 2, and the amount of the Defendant’s use of the credit card is much less than the amount recognized by the lower court, and the evidence used by the lower court to find the Defendant guilty is illegally collected, and thus, the lower court convicted the Defendant of all the charges. In so doing, the lower court erred by misapprehending the facts contrary to the rules of evidence and thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The punishment of the court below (two years of imprisonment) is too unreasonable.

2. Summary of the facts charged

On September 208, the Defendant received a forged credit card from Nonindicted 2 and conspiredd with the said Nonindicted 2 to purchase the goods as if he were his normal credit card and obtain it by deception. The said Nonindicted 2 provided a forged credit card to those who have failed to receive the name at that time, and presented it as if he had been a normal credit card, and subsequently, conspired with the above Nonindicted 2 and the said Nonindicted 2 conspired with the above Nonindicted 2 and the above Nonindicted 2 to acquire the goods and acquire them by deception. The Defendant conspired with the above Nonindicted 2 and the above Nonindicted 2 and the above Nonindicted

(a) Fraud and violation of the Specialized Credit Finance Business Act;

On November 26, 2008, in collusion with the above non-indicted 2 and the above non-indicted 2 and the above non-indicted 2, and on November 26, 2008, the defendant purchased goods equivalent to KRW 109,900,00, such as tobacco, at 00,000, and presented the forged credit card (credit card No. 1 omitted) delivered from the above non-indicted 2 to the officer in charge with whom his name cannot be identified, as if he had actually formed the genuine credit card, and used the forged credit card by paying it. The defendant acquired and acquired goods equivalent to KRW 109,900, such as tobacco, etc. from the above employees, in sequence, from October 1, 2008 to November 30, 2008, the defendant acquired the above non-indicted 2 and the above non-indicted 2 and the above-indicted 2, and used the forged credit card by means of the above 532 method as shown in the annexed crime list 1 to November 30, and acquired goods equivalent to KRW 41014,710.

B. Attempted Fraud

On November 29, 2008, in collusion with the above non-indicted 2 and the above non-indicted 2 and the above non-indicted 2, and the defendant tried to acquire the goods in the order with the above non-indicted 2 and the above non-indicted 2 and the above-indicted 19:17 on November 29, 2008, by purchasing the goods equivalent to the 110,000 won from the Mandong (number 2 omitted), and by using the forged credit card (credit card number 2 omitted) delivered from the above non-indicted 2 as if the above non-indicted 2 were actually the normal card, the defendant failed to obtain the goods amounting to KRW 110,000 from Oct. 1, 2008 to Nov. 30, 2008, and did not obtain the above credit card's attempted money through the above-mentioned method 76 times in total as shown in the annexed crime list 2 from Oct. 1, 2008 to Nov. 308. 768.

3. The judgment of the court below

The court below found the witness Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court) guilty of all the above charges in full view of the statements in the court of original trial, the suspect interrogation protocol of the Defendant at the prosecution, the written statements of Nonindicted Party 3, 4, 5, 6, and 7, each of the police seizure records, each of the investigation reports, etc.

4. Judgment of the court below

(a) The details of emergency arrest and seizure of the accused;

According to the evidence duly adopted and examined by the court below and the trial court (in particular, each statement at the court court of the first instance of the non-indicted 1 and the non-indicted 7 witness), the following facts may be recognized:

(1) Since the Defendant entered the Republic of Korea on April 20, 2008, he/she had resided in Yongsan-gu Seoul Metropolitan Government ○○-dong (number 3 omitted) with his/her Chinese wife and son who entered the Republic of Korea on October 1, 2008.

(2) At around 11:00 on December 1, 2008, Nonindicted Party 1, who was in charge of handling affairs by outside the Seoul Regional Police Agency and senior judicial police officer, was arrested by the Defendant as an offender of a case violating the Specialized Credit Financial Business Act at the Defendant’s residence without an interpreter.

(3) In addition, Nonindicted Party 1’s slope, etc. confiscated two Nohbuk-do, two cards, four cards sales slips, 25 credit cards, four boxes, 110 pieces of tobacco (e.g., Ethical, Ethical, Ethical, Ethical, Ethical, Ethical, etc.) 10 pieces of cash, ten 10 million cashier’s checks of KRW 10,000,000 in cash, five 5 calendars, and USAD cards in the Defendant’s residence. At the time, the Defendant was under guard.

(4) At around 12:15 on the same day, the Defendant was transferred to the 2nd office outside the Seoul Metropolitan Police Agency. On the same day, the Defendant was detained in the cell of the Seoul Southern Police Station around 21:25.

(5) At around 10:10 to 10:35 on December 2, 2008, Nonindicted Party 1’s slope, along with Nonindicted Party 8, etc., the following day, searched again in the above Defendant’s residence, and seized one white cap, one set on verification coloring, six set on female clothes, two LGNot North Korea, and four soldiers (nicker). At the time, Nonindicted Party 1 did not act on the spot on the part of the Defendant.

(6) From Nonindicted 9 (tentative name), Nonindicted 1, who was the one who was the one who was the informant of the same day, he received a written statement from Nonindicted 9 (tentative name), that “Before two years ago, there was a lot of transaction of goods, making a forged card and making tobacco and alcoholic beverage. Nonindicted 1 was aware that he was aware of the photograph taken by the police officer, and confirmed the Defendant.”

(7) On December 3, 2008, Nonindicted 1 found Nonindicted 7 of the special investigation team of the foreign exchange bank located in Seocho-gu Seoul Metropolitan Government ○○○dong (number 4 omitted) on the following day, and confirmed the authenticity of Nonindicted 1’s credit cards seized under the above paragraph (3) at the Defendant’s residence. Of them, it was confirmed that the credit cards in Chapter 12 are different from the numbers identified on the card and the number memoryed on the mabic belt, and that they were found to be a forged credit card.

(8) On December 4, 2008, Nonindicted Party 1 received a written statement from Nonindicted 3, 4, 5, and 6, who is an employee of convenience stores, etc., with the following day, that “The Defendant is a black male who purchased goods with a credit card.” Nonindicted 1 only shows only one photograph of the Defendant to the said person at the time, and did not cross the Defendant.

(9) On December 10, 2008, the Defendant was examined three times in custody after the initial detention at the police station. On December 10, 2008, at the prosecutor’s office of Seoul Central District Prosecutors’ Office 904, the Defendant was examined under the participation of Nonindicted 11 by the interpreter.

(10) On the other hand, around December 12, 2008, Nonindicted Party 1 found the Defendant detained in a detention house and prepared in advance to the effect that “the goods seized under the above paragraphs (3) and (5) were seized at will by the Defendant,” and received the Defendant’s unmanned seal without explaining any specific circumstances.

B. Whether the emergency arrest against the defendant is lawful

(1) Article 200-3(1) of the Criminal Procedure Act provides for the requirements for emergency arrest as follows.

In any of the following cases, a public prosecutor or judicial police officer may, if there are reasonable grounds to suspect that a suspect has committed a crime subject to death penalty, imprisonment for life or imprisonment with or without prison labor for a maximum period of three years or more, and it is impossible to obtain a warrant of arrest of a judge of the district court because of urgency, arrest the suspect without the warrant, upon notification of the grounds therefor. In such cases, the term "emergency" means the time when there is no time to obtain a warrant of arrest,

1. Where a suspect is likely to destroy evidence;

2. If the criminal suspect escaped or is likely to flee.

(2) To the extent that the emergency arrest is an exception to the warrant principle, it is exceptionally permitted only when the requirements of Article 200-3(1) of the Criminal Procedure Act are met. Emergency arrest without a warrant under the legal basis constitutes illegal arrest. Here, whether the requirements of emergency arrest are met or not should be determined based on the situation at the time of arrest, not on the basis of ex post facto evidence, but on the basis of the situation at the time of arrest. In addition, if a prosecutor or a senior judicial police officer's judgment on whether the requirements are met is considerably unreasonable in light of the empirical rule even in light of the situation at the time of emergency arrest, such arrest is illegal arrest (see Supreme Court Decision 200Do5701, Jun. 11, 2002, etc.).

(3) First, the statement at the court of first instance of Nonindicted Party 1 who arrested the Defendant is as follows.

(A) A more than four months prior to emergency arrest of the Defendant, the Defendant was committed by himself/herself, and the Defendant was also left in his/her place of residence and entered the place of residence in several times.

(B) Before emergency arrest of the Defendant, the Defendant was notified by telephone, etc. of the details of transactions suspected of being suspected of engaging in a transaction by a forged credit card from Nonindicted 7 of the Special Investigation Team of the Foreign Exchange Bank. However, such notification did not have been identified as the Defendant who purchased goods using forged credit cards.

(C) In case of emergency arrest of the Defendant, a number of credit cards were seized in the Defendant’s residence and brought them to the police station, and thereafter, confirmed whether the said credit cards were forged with Nonindicted 7.

(D) Although the Defendant did not act for a separate interpreter when an emergency arrest was conducted, there was a police officer who is well in English among police officers accompanying the Defendant at the time, who provided interpretation through the police officer, and notified the Defendant of the summary of the specific crime, the right to appoint a defense counsel, and the right to refuse to make statements.

(4) Whether the emergency arrest is lawful

(A) Whether there was a good reason to suspect that a person committed a crime

First of all, Non-Indicted 1's statement (the defendant was committed directly for four months prior to the emergency arrest of the defendant, and the credit card as stated in the facts charged in this case was recorded several times) of the above statement of Non-Indicted 1 is hard to believe for the following reasons. According to the statement of paragraph (3) (B) of this case before Non-Indicted 1's emergency arrest of the defendant, since the facts constituting the facts charged in this case are not yet specified, it is recognized that it is not difficult to inform the defendant of "the summary of specific facts charged" at the time of the above emergency arrest, and the credit card which was confirmed to have been forged after the fact that Non-Indicted 1 was seized at the defendant's residence, such as the statement of paragraph (3) (C) is nothing more than one head among the credit card numbers stated in the facts charged in this case, and all of the credit cards listed in the remaining facts charged in this case are unrelated to the above seizure. However, it does not appear that there was considerable reason to suspect the facts charged in this case at the time of emergency arrest.

(B) Whether to notify the suspected facts, etc.

According to Article 12(5) of the Constitution of the Republic of Korea, “no person shall be arrested or detained unless he/she is notified of the grounds for arrest or detention and of the right to assistance of counsel.” According to Article 200-5 of the Criminal Procedure Act, a prosecutor or judicial police officer provides that “in cases of the arrest of a suspect, a prosecutor or judicial police officer shall give him/her an opportunity to defend himself/herself by stating the gist of the offense, the reason for the arrest,

Before emergency arrest of the defendant, Non-Indicted 1 was suspected of using a forged credit card, and at the time, he was arrested with an interpreter who is fluent in English at the arrest site. Thus, even in the case of emergency arrest of the defendant, he could notify the defendant of the "the summary of specific criminal facts, the right to appoint counsel and the right to refuse to make statements" in English, which is a language capable of ordinarily using and understanding the defendant, but he was able to act for the police officer with the capacity of English history, such as Non-Indicted 1's statement under sub-paragraph (d), and did not act for a specialized interpreter. Meanwhile, as shown in the trial process of this case, it does not seem that the defendant properly complied with the procedure required by the above provision of this case at the time of emergency arrest.

(C) Whether urgency is urgently required

Meanwhile, according to the statement of Nonindicted 7 by the witness at the trial of the political party, Nonindicted 1’s statement at the trial of the political party, such as “ Nonindicted 1, who was informed of the details of the suspected charge card at any time by Nonindicted 7, or of the current status of the use of the forgery card in real time,” is difficult to believe, but if the statement of Nonindicted 1’s above (3) Item (A) is true, Nonindicted 1 had sufficient time to obtain arrest warrant from the judge in advance before the emergency arrest, and there is no other evidence to deem that there was an urgent circumstance to the extent that it is impossible to obtain arrest warrant at the time of the above arrest.

(D) Sub-committee

According to the above (a) through (c), the emergency arrest against the defendant is illegal arrest because it does not meet the requirements of the emergency arrest required by the legal provision.

C. Determination of evidence

(1) Defendant’s statement

(A) Probative value of the suspect interrogation protocol against the defendant

The suspect interrogation protocol of the defendant against the defendant (the defendant stated that he purchased an article using the forged credit card of the non-indicted 2 on 609 occasions, but since he used the credit card and again sent it to the non-indicted 2, the non-indicted 2 may directly engage in it, and the non-indicted 2's relatives may use it. The same shall apply to the purchase of the forged credit card on 76 occasions. The above interrogation statement to the effect that the defendant's attempt to purchase an article by using it on 76 occasions, but it is not approved," and the above interrogation of the suspect was sent to the prosecutor on December 1, 2008 after illegally arrested by the police and sent it to the prosecutor on December 10, 2008. This was done in close to the illegal emergency arrest and thus it was done in a state where the unlawful situation was not resolved, since the defendant received the assistance of the defense counsel at the time of the above interrogation protocol, it is not admissible as evidence of the defendant's unlawful arrest.

(B) Statement at the court of the court below by the defendant

According to the records, the defendant was present at the first trial date of the court below (the 30th day of detention, December 30, 2008), and was notified by the presiding judge prior to the personal interrogation, that "it is possible to refuse to make a statement or refuse to make a statement about each question, and to make a favorable statement." On the trial date, the prosecutor reads facts charged, facts charged, facts of crime, and applicable provisions of law in accordance with the indictment, and on the second trial date (the 46th day of detention, January 15, 2009) of the court below (the 30th day of detention, December 30, 2008), the defendant stated that "it is recognized that the basic facts among the facts charged in this case are acknowledged, the use of card in Pyeongtaek, Incheon, Sungnam, and Gwangju Metropolitan City is denied from among the list of crimes, and the 3rd trial date (the 2nd day of February 5, 2009) obtained the credit card from the non-indicted 2 and used the credit card in this Chapter 1 million in the prosecutor's."

According to the above circumstances, the above statement made by the defendant in the court of original instance is deemed to have been made when causal relationship between the illegal emergency arrest and the defendant's independent act was involved, or at least when the causal relationship between the above illegal emergency arrest was cut off or dissolved, and thus, it may be used as evidence for the facts charged in

(2) The evidence acquired by each seizure procedure

(A) Criteria for determining admissibility of evidence

In order to guarantee fundamental human rights, the normative power of the Criminal Procedure Act, which provides specific standards for search and seizure procedures, should be maintained so that the Constitution that declared due process of search and seizure and the foundation of warrant requirement can be realized in harmony with the establishment of substantial truth and the ideology of the protection of individual rights. Therefore, evidence collected without following the procedures prescribed by the Constitution and the Criminal Procedure Act, is not in principle a legitimate procedure prepared to guarantee fundamental human rights, and thus, cannot be used as evidence for conviction. The most effective and clear response measures to restrain illegal search and seizure by an investigative agency and prevent recurrence should not be used as evidence for conviction, as well as the evidence collected through it.

However, in finally determining whether to grant admissibility of seized articles collected without following the procedure prescribed by the Act, the Constitution and the Criminal Procedure Act are an important goal and ideology that the realization of the legitimate penal authority through the examination of substantial truth is to achieve through the criminal procedure. Thus, denying admissibility of such evidence uniformly on the sole ground that it is evidence collected without following the procedure established formally cannot be deemed that the Constitution and the Criminal Procedure Act also conforms to the purport of formulating the procedural provisions regarding criminal procedure. Therefore, in cases where all circumstances pertaining to the procedural violation committed by an investigation agency during the process of evidence collection, namely, the purport of the procedural provisions and the degree and degree of the violation, specific details and possibility of the violation, details and degree of the violation, relationship between the right and legal interest to be protected, the relationship between the defendant and the collection of evidence, and the awareness and intent of the investigation agency, etc., the procedure of the investigation agency does not constitute cases where the procedural violation of due process of the investigation agency infringes on the substantive substance of due process, rather, the exclusion of admissibility of evidence can be deemed as having violated the purpose of the Criminal Procedure Act’s 201 evidence collection and its evidence.

(B) Each police seizure protocol;

First of all, according to the police record of December 1, 2008 (Evidence No. 35 pages), it stated to the effect that "the defendant has forged and used 12 overseas credit cards by using Nohbuk-gu cards, and the defendant was arrested on suspicion of violating the Specialized Credit Financial Business Act at around 11:00 on December 1, 200, and the defendant is in custody by purchasing and keeping goods using overseas credit cards, and thus, he/she again submitted items 1 through 11 as to tobacco, alcohol, fry, fry, fry, etc.," and the police record of 00 on December 2, 2008 (Evidence No. 37 pages) stating that he/she had purchased 6 bit 10 on the 19th day of December 11, 2008 on the 10th day of December 11, 2008 on the 6th day of December 201: 16th day of May 208.

However, according to Non-Indicted 1’s statement at the court of first instance, each of the above records of seizure is that “a prosecutor’s point of view and seizure without a warrant is made retroactively to the above circumstances as seen in Section A(10).” As such, each of the above records of seizure is “the fact that a defendant seized “ without a warrant” from the defendant, which is the essential contents of the original records of seizure, as stated in Section A(10). As such, each of the above records of seizure is false (as seen in the above, it was revealed that Chapter 25 credit cards seized were forged only after checking their authenticity and authenticity from the foreign exchange bank investigation team on December 3, 2008, and it was revealed that Chapter 12 of Chapter 25 was forged, and thus, even if it was not revealed that credit cards were forged at the time when Chapter 25 was seized, it cannot be seen that the defendant’s signature and seal was not yet used as evidence, and there was no way to seize each of the above records of seizure.

(C) Probative value of seized articles

Article 216(1) of the Criminal Procedure Act provides that "a public prosecutor or judicial police officer may, if necessary, take the following measures without a warrant in cases where he/she arrests or detains a suspect pursuant to Article 200-2, 200-3, 201, or 212." Article 217(1) of the same Act provides that "a public prosecutor or judicial police officer may, where it is necessary to urgently seize an article owned, possessed, or kept by a person arrested pursuant to Article 200-3, conduct a search, seizure, or verification without a warrant within 24 hours from the time of arrest." Article 216(2) of the same Act provides that "a public prosecutor or judicial police officer may request a search and seizure warrant without delay where it is necessary to continue to seize an article seized pursuant to paragraph (1) or Article 216(1)2. In such cases, a public prosecutor or judicial police officer shall issue a search and seizure warrant within 48 hours from the time of arrest, and that a public prosecutor or judicial police officer shall immediately return the article."

Meanwhile, despite the entry of each of the above police records of seizure, since the actual situation of the seizure is the same as mentioned in paragraphs (1) (3) and (5) above, even if it is deemed that Nonindicted Party 1’s slope, etc. arrested the defendant at the time of arrest and seizes the goods owned, held, or kept by the defendant within 24 hours at the time of arrest, the above emergency arrest is illegal as mentioned in Paragraph (2) above. Thus, each of the above seizure procedures accompanying the above emergency arrest procedure cannot be deemed illegal. Meanwhile, even if the above emergency arrest procedure is lawful and the seizure procedure accompanied by it is permitted, even if the above emergency arrest procedure was issued, the above emergency arrest procedure was not taken, and as long as the entry of each of the seizure records was changed as seen earlier, there was no room for the removal of the illegality thereof.

If so, the articles seized through the above illegal seizure procedure cannot be used as evidence to prove guilty of the facts charged of this case (On the other hand, even if the articles seized are consistent with the credit card mentioned in the facts charged of this case, 1 of Chapter 25 is limited to only one of them, and 2 of the mother and ray bargaining comparison with the photograph (Evidence 19, 32, 33 of the evidence record) is insufficient to identify the defendant, and 3 of the card box is not directly related to the facts charged of this case, and 4. The conclusion that the defendant was possessed at the time of seizure of the card slip and sales slip, etc., 4. The credibility of the statement made by the witness at the trial of the non-indicted 1 cannot be acknowledged because the credibility of the statement made by the witness at the trial of this case is low).

(D) Investigation report (bell investigation), investigation report (the card company Nonindicted 7 investigation), investigation report (the sales slips investigation) and investigation report (the card statement forgery card investigation), investigation report (CCTV investigation) (CCTV investigation)

First of all, each statement in the investigation report (belle investigation), investigation report (the card company non-indicted 7 investigation), and investigation report (sales slips investigation) is a secondary evidence which is merely a verifying fact based on the articles confiscated by illegal arrest and seizure procedures, and it does not seem that the above illegal state and the causal relationship have been severed or dissolved. Thus, the above evidence is inadmissible in light of the above legal principles.

Next, the investigation report (the investigation of the card forgery card) is that the police officer Non-Indicted 1 prepared on the basis of the pre-mark, but the pre-mark is not attached on the record, but on the other credit cards except for one (the card No. 2 omitted) out of the seized credit cards, it is difficult to believe the remaining credit cards as they are without any mentioning the fact that the above card was forged. The investigation report (CCTV) is that "the defendant photographs tobacco using the credit card at the point of Gangnam-gu Seoul Special Metropolitan City ○○○ Dong (number No. 3 omitted) on November 29, 2008 as CCTV." However, it cannot be concluded that the image of the video is the defendant.

(E) Statement at the court of the first instance by Non-Indicted 1 of the witness

Nonindicted 1 stated in the court of the trial that “Around November 26, 2008, at the time of the trial, Nonindicted 1 directly observed the Defendant using a credit card that was forged at ○○○○○ Dong (number 1 omitted) store in Yeongdeungpo-gu Seoul, Yeongdeungpo-gu, Seoul, to see four cigarettes of tobacco.”

However, the criminal report prepared by Nonindicted Party 1 directly on December 5, 2008 stated that “ Nonindicted Party 2 and Nonindicted Party 12 reported the network outside on November 26, 2008,” at ○○○○○ store, stated that “ Nonindicted Party 2 and Nonindicted Party 12 purchased four cigarettes by means of a forged card,” and it does not coincide with the above statement that the Defendant alone purchased goods by a credit card, and Nonindicted Party 1 stated that “the above criminal report is prepared by hearing the Defendant’s statement,” in the court of the lower court, it is not deemed that Nonindicted Party 1 directly observed the above facts, and the remaining witness parts are not specified at all, and thus, it is difficult to believe that there is no reason to regard them.

(F) Nonindicted 9’s written statement, investigation report (incrimination investigation)

The above investigation report (the investigation report) states that "the suspect entered Korea from around three years prior to the entry of about three years to the Republic of Korea and used a forged card while leaving Korea." The written statement of Nonindicted 9 (tentative name) of the above informant was "the above informant made a forged card and made a lot of transaction with multiple goods, and made a false card and made a lot of drinking." The contents of the investigation report in question are doubtful about whether the informant properly classified the defendant as of April 20, 2008 because the defendant entered Korea. Further, the above statement of Nonindicted 9 did not directly consider that the defendant used the forged card, but it was such sound. Accordingly, the above evidence cannot be viewed as evidence that has probative value.

(G) Nonindicted 3, 4, 5, and 6’s written statements and investigation reports (debrising point investigation)

In the criminal identification procedure based on the appearance, etc. of the suspect, it shall be deemed that the credibility of a witness’s statement in such a method is low unless there are any additional circumstances, such as whether the suspect was aware of the victim or a person having knowledge of the suspect, or not, in addition to the victim’s statement, whether there are any other circumstances to suspect the suspect as the criminal, or not, unless there are other circumstances to suspect the suspect as the criminal (see, e.g., Supreme Court Decision 2007Do1950, May 10, 2007).

The above statements in this case are all written statements that "the black male of the attached photograph will have the purchaser of the goods after giving a credit card to the author and paying the credit card." The above non-indicted 3, etc. have already been put in the same word, and the photographs attached to the written statements are attached only to the defendant, and the above non-indicted 3, etc. have the face of the defendant, and there is no fact that the above non-indicted 3, etc. have the face of the defendant, and it is not easy for the defendant to distinguish the defendant as he is black, and it is not easy for him to distinguish the defendant from other blacks, the above written statements are not admissible or it is hard to believe it without the consent of evidence, and there is no probative value because the non-indicted 1 has already written statements from the above persons.

(3) Sub-decisions

In addition, there is no evidence to prove the facts charged among the remaining evidences submitted by the prosecutor and duly adopted and investigated by the court below and the court below and the court below did not have any evidence to prove that the defendant conspireds with the person without a name, as well as the non-indicted 2. Thus, even if the defendant's statement in the above court of the court below is a confession of some facts charged, the confession is merely the only evidence unfavorable to the defendant, and thus it cannot be admitted as evidence of guilt pursuant to Article 310 of the Criminal Procedure Act. Thus, the facts charged in this case constitutes the time

However, the judgment of the court below which found the defendant guilty is erroneous by misunderstanding the facts, which affected the conclusion of the judgment.

5. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged in this case is as shown in the above 2.2. As seen earlier, the above facts charged constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act

Judges Yang Jae-young (Presiding Judge)