[1] The time when the right to refuse to make a statement is acknowledged as a suspect, and when the right to refuse to make a statement is not notified to a person who is not a suspect, whether the statement is admissible (affirmative)

[2] The case holding that the court below erred in the misapprehension of legal principles in holding that Byung's statement of witness Byung was not admissible due to the non-disclosure of the right to refuse to make a statement after it was concluded that Byung was the accomplice of the above crime, and it was not admissible as evidence, in case where the defendants conspired with Eul in China and then imported the philopon by receiving the grain blopon from the way of delivering the grain bopon in the way of delivering the grain bopon in the way of delivering the grain bopon to Eul through Eul, which was mainly prosecuted by the prosecutor, and the prosecutor served as the defendant on Eul

[3] The case holding that the court below erred in the misapprehension of legal principles on the grounds that it is insufficient to acknowledge that the defendants had a criminal intent to commit a crime in relation to the importation of phiphones, in case where the defendants were indicted primarily by importing phiphones from the Incheon International Passenger Terminal by receiving the grain philophones from the Incheon International Passenger Terminal through a public invitation with Gap in China after entering China, and then importing phiphones from the Incheon International Passenger Terminal

[1] The notification of the right to refuse to make a statement to prevent a suspect from being forced to make a statement by effectively guaranteeing the suspect's right to refuse to make a statement. Considering the content of the provisions of the Criminal Procedure Act regarding the notification of the right to refuse to make a statement and the practical meaning of the notification of the right to refuse to make a statement, the status of a suspect subject to notification by an investigative agency should be deemed to be recognized when an investigative agency acknowledged a criminal charge against a person subject to investigation and started an investigation. Accordingly, even if the right to refuse to make a statement was not

[2] The case holding that in case where the defendants conspired with Gap in China after entering China and then imported philophones through delivery of philophones, and the prosecutor was indicted around him, and the prosecutor applied for the protocol of statement prepared by the prosecutor Byung who served as a witness Byung to deliver the defendants with philograms to Eul, the court below's decision that the defendants' right to refuse to make statements cannot be acknowledged as unlawful since Byung could not be acknowledged as a witness at the time of the prosecutor's investigation or even after it was possible for the prosecutor to investigate Byung as a witness, and it cannot be concluded that the prosecutor acknowledged Byung's crime suspicion against Byung and the suspect status was established, and even after the prosecutor was able to start the investigation, it cannot be found in the record that the defendants took the form of investigation, not the suspect, with the intention to escape the notice of the right to refuse to make statements, but the defendants did not know that philophones were imported from China during the investigation process, and the defendants could not be admitted as a witness of the investigation agency for the purpose of clearly collecting evidence of the defendants.

[3] The case holding that the court below erred in the misapprehension of legal principles as to subjective elements of crime composition or the principle of free evaluation of evidence on the ground that, in light of all the circumstances acknowledged by the evidence that the court below rejected, the defendants knew or did not have been aware of the fact that the Philphone was brought into the Republic of Korea from China, in case where the defendants were indicted primarily on charges of importing the Philphones through a public invitation with Gap in China and Eul entering China, and then importing the Philphones from Incheon International Passenger Terminal, the court below found the defendants not guilty on the ground that there is insufficient reason to acknowledge that the defendants had criminal intent as to the importation of the Philphones.

[1] Article 12(2) of the Constitution of the Republic of Korea; Articles 244-3 and 308-2 of the Criminal Procedure Act / [2] Article 30 of the Criminal Act; Articles 2 subparag. 4(b), 4(1), and 58(1)6 of the Narcotics Control Act; Articles 244-3 and 308-2 of the Criminal Procedure Act / [3] Article 30 of the Criminal Act; Articles 2 subparag. 4(b), 4(1), and 58(1)6 of the Narcotics Control Act; Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2000Do2968 Decided October 26, 2001 (Gong2001Ha, 2633) Supreme Court Decision 2008Do12127 Decided June 24, 2010

Defendant 1 and one other

Defendant 1 and Prosecutor

Attorney Lee Jae-sik et al.

Gwangju High Court ( Jeonju) Decision 2011No14 decided June 14, 2011

The judgment of the court below is reversed, and the case is remanded to the Gwangju High Court. Defendant 1’s appeal is dismissed.

1. Judgment on Defendant 1’s grounds of appeal

A. The argument that the defendant voluntarily surrenders to the court of final appeal is the first time and cannot be a legitimate ground for final appeal. Moreover, even if the defendant voluntarily surrenders to the court, it is merely a mere fact that the court can voluntarily reduce or exempt the punishment against the person who voluntarily surrenders to the court, and it cannot be said that the court below erred by failing to reduce the number of persons

B. According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable cannot be a legitimate

2. Judgment on the grounds of appeal by the prosecutor

A. As to the denial of admissibility due to the non-disclosure of the right to refuse to make a statement

1) Article 244-3 of the Criminal Procedure Act provides that a prosecutor or senior judicial police officer shall inform a suspect that he/she may refuse to make a statement prior to interrogation of the suspect who is present.

The Supreme Court has confirmed that the suspect's right to refuse to make statements is based on the right to refuse to make statements against himself/herself in criminal cases guaranteed by the Constitution, so if the investigative agency did not notify the suspect of his/her right to refuse to make statements in advance in interrogation, the suspect's statement should be denied even if it is acknowledged as arbitability of statements as illegally collected evidence, and if the document or document recording or recording the suspect's statement is made in the investigative agency's investigation process, it cannot be viewed as different from the suspect's interrogation protocol even if it takes the form of "written statement, written statement or written statement" (Supreme Court Decisions 92Do682 delivered on June 23, 1992; 2008Do8213 delivered on August 20, 209).

As above, the notification of the right to refuse to make a statement to prevent a suspect from being forced to make a statement by guaranteeing the suspect's right to refuse to make a statement effectively. Considering the provisions of the Criminal Procedure Act regarding the notification of the right to refuse to make a statement and the practical meaning of the notification of the right to refuse to make a statement, the status of a suspect subject to notification by an investigative agency is recognized when an investigative agency recognizes the criminal charge against a person subject to investigation and commences an investigation (see Supreme Court Decisions 2000Do2968, Oct. 26, 2001; 2008Do12127, Jun. 24, 2010). Therefore, even if the right to refuse to make a statement is not notified, the admissibility of the statement is not denied.

2) The record reveals the following facts.

The prosecutor of the lower court, in collusion with Nonindicted Party 1 in China on December 8, 2009, imported phiphones by means of delivery of approximately 1g of phiphones via Nonindicted Party 2 who entered the Cheongdol Incheon Passenger Terminal from the 2 International Passenger Terminal on December 11:00, 2009; the Defendants conspired with the above Nonindicted Party 1 on January 7, 2010, approximately 2g of philphones from the above passenger terminal in the same way as 0: around 11:00; and approximately 5g of philphones from the above passenger terminal in the same way as 0: on February 4, 2010. The summary of the facts charged is as follows: “On December 10, 2010, the Defendants purchased approximately 10g of philphones from the above passenger terminal using the same method as 10g of 20 philphones, and the Defendants purchased approximately 2g of Incheon 10 Glphones.”

In order to prove the facts charged above, the prosecutor applied for the protocol of statement to Nonindicted 3 prepared by the prosecutor as evidence. The court below rejected Nonindicted 3’s motion for the examination of evidence on the ground that “In order to help the Defendants in importing or purchasing the penphone from Nonindicted 1, the court below rejected Nonindicted 3’s motion for the examination of evidence on the ground that Nonindicted 3’s motion for the examination of evidence was not admissible as evidence collected unlawfully, while Nonindicted 3’s motion for the examination of evidence was rejected to prove the unique circumstances of Nonindicted 3’s statement.

3) However, in light of the above legal principles and records, we cannot accept the above determination by the court below for the following reasons.

According to the reasoning of the judgment below, in the process of shipping the instant phiphone into Korea from China and delivering it to the Defendants, Nonindicted 3 served as a witness of the Incheon International Passenger Terminal after taking the grain shotphone concealed from Nonindicted 2. Accordingly, it cannot be ruled out that Nonindicted 3 was an accomplice relationship with the Defendants with respect to the importation or purchase of the instant phiphones. However, the possibility that Nonindicted 3 was in an accomplice relationship with the Defendants cannot be determined solely on the basis of the possibility that Nonindicted 3 was in an accomplice relationship with the Defendants, but it cannot be concluded that Nonindicted 3 was in the suspect’s position by recognizing and commencing the investigation as witness of this case, and there is no objective material to deem that Nonindicted 3 was in the suspect’s position, and even if the prosecutor could initiate the investigation into Nonindicted 3, it cannot be said that the prosecutor took the form of investigation, not the suspect, with the intent to escape from Nonindicted 3’s right to refuse to make a statement. Rather, it cannot be found in the record that the prosecutor was not aware of the import of the instant phiphones in the investigation process.

Nevertheless, without any objective material, the lower court concluded that Nonindicted 3 was in the position of the criminal suspect as an accomplice in the crime of importing or purchasing phiphones, and determined that the right to refuse to make statements was inadmissible due to the failure to notify Nonindicted 3 of the right to refuse to make statements, and rejected the prosecutor’s video CD verification application to prove the unique conditions of the written statement. In so doing, the lower court erred by misapprehending the legal doctrine on the admissibility of the suspect’s statement conducted without notifying the right to refuse to make statements, and it is obvious that such illegality affected the conclusion of the judgment of the lower court that acquitted the Defendant of this part of the primary facts charged. The Prosecutor’s

B. As to the criminal intent on the importation of philophones

1) The term "import" under Article 58 (1) 6 of the Narcotics Control Act means any act of bringing the instant phiphone into the Republic of Korea from a foreign country regardless of its quantity and purpose (Supreme Court Decision 97Do1271 delivered on July 11, 1997). Thus, in the instant case, if the defendants knew or could have known the situation in which the instant phiphone was brought into the Republic of Korea in China, it would be possible to recognize the criminal intent as to the import.

2) However, the court below found the Defendants not guilty of the facts charged in relation to the import of a phiphone on the ground that the remaining evidence except the statement of Nonindicted 3, which judged that the right to refuse to make a statement was not admissible as evidence because it was not sufficient to recognize that the Defendants had criminal intent to commit a crime against the fact that the above phiphone was carried in from China, and found the Defendants guilty only of the preliminary charges concerning the purchase of a

3) However, it is difficult to accept the above determination by the lower court in the following respect.

Article 308 of the Criminal Procedure Act, which provides for the principle of free evaluation of evidence, provides that the probative value of evidence shall be decided by the judge's free evaluation of truth. Thus, the judge of a fact-finding court who has full power over the determination of evidence shall take into account the perception obtained in the trial in fact-finding and the evidence examined. In addition, the judge's judgment on the probative value of evidence shall conform to logical and empirical rules, and the degree of formation of a conviction for the conviction in a criminal trial shall be the extent that there is no reasonable doubt, but it is not required to exclude all possible doubts, and rejection by causing a suspicion without reasonable grounds recognized as probative value shall not be permitted beyond the bounds of the principle of free evaluation of evidence. The term "reasonable doubt" refers to a reasonable doubt about the probability of a fact that is inconsistent with facts based on logical and empirical rules, and it shall not be included in a reasonable doubt based on conceptual or abstract doubt (see, e.g., Supreme Court Decision 2017Do12788, Dec. 27, 2017).

However, in light of the following circumstances acknowledged by the evidence rejected by the lower court, namely, Nonindicted 3’s receipt of phiphones through Nonindicted 3, the place where the Defendants entered China and the Republic of Korea, and the Incheon International Passenger Terminal entering the Republic of Korea. The Defendants’ assertion that the Defendants were receiving the phiphones in the Incheon International Passenger Terminal three times to purchase the phiphones in Korea is not easy, and Nonindicted 2, who opened the phiphones with the Republic of Korea and China, was able to see that the phiphones were imported in China. In so doing, Nonindicted 2, who was aware of the fact that Nonindicted 2, as Nonindicted 3, the Defendants were able to be able to see that the phiphones were transferred from the buphones, and that Nonindicted 2, who was aware of the credibility of the phiphones, was the Defendant 1’s son’s account and the Defendant 2, who was able to use Nonindicted 3’s Melopical from the police station.

Nevertheless, the court below affirmed the reasoning of innocence in the judgment of the court of first instance and acquitted the Defendant of this part of the primary facts charged. The court below erred by misapprehending the legal principles on subjective elements of constituent elements of crime or by misapprehending the legal principles on the principle of free evaluation of evidence by making decisions contrary to empirical and logical rules in determining the probative value of evidence. The prosecutor’s ground of appeal pointing this out has merit

3. Conclusion

Therefore, the part of innocence as to the above primary facts charged against the defendants should be reversed, and since the above acquittal part and the part that the court below found guilty should be sentenced to a single sentence, the whole judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination, and the appeal by the defendant 1 is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee In-bok (Presiding Justice)