[1] Specific degree of the facts charged as an inclusive crime

[2] Requirements for recognizing admissibility of a recording tape that recorded a conversation

[3] The case holding that the admissibility of evidence of the recording tape cannot be acknowledged on the sole basis of the recording tape, even if the contents of the recording correspond to those of the recording book and the contents of the recording are the voice of the person who made a statement after the court conducted verification procedures for the recording tape, which is a copy of the recording recorded in the digital recording machine by electronic means

[1] Article 254(4) of the Criminal Procedure Act / [2] Articles 311, 312, and 313(1) of the Criminal Procedure Act / [3] Articles 311, 312, and 313(1) of the Criminal Procedure Act

[1] Supreme Court Decision 99Do2934 delivered on November 12, 199 (Gong1999Ha, 2559) Supreme Court Decision 2006Do5041 Delivered on August 23, 2007 / [2] Supreme Court Decision 2005Do2945 Delivered on December 23, 2005 (Gong2006Sang, 207) Supreme Court Decision 2006Do8869 Delivered on March 15, 2007 (Gong2007Sang, 585) (Gong2007Sang, 585) Supreme Court Decision 2007Do10804 Delivered on March 13, 2008 (Gong2008Sang, 549)

Defendant

Defendant

Law Firm (LLC) LLC, Attorneys Lee Yong-woo et al., Counsel for defendant-appellant

Jeonju District Court Decision 2008No691 Decided September 26, 2008

The judgment of the court below is reversed, and the case is remanded to Jeonju District Court Panel Division.

We examine the grounds of appeal.

1. As to the ground of appeal that the facts charged that the total amount of KRW 50 million was not specified on two occasions from December 14, 2006 to February 15, 2007

In this case, it is obvious that the defendant was indicted for a single comprehensive crime of receiving money several times, and in the case of a single comprehensive crime, even if not specifically specified with regard to each act constituting the crime, if the whole period and completion period of the crime, method and place of the crime, the other party, frequency of the crime, and the total amount of damages are specified, the crime is specified (see Supreme Court Decision 9Do2934 delivered on November 12, 199). Thus, the argument in the grounds of appeal that the charge was not specified on the ground that the defendant did not specify the specific amount received on the above date in the indictment of this case is not acceptable.

2. As to the ground of appeal that the recording tape of this case is inadmissible

Where a court verifies the contents of a recording document concerning conversations between the defendant and the other party as evidence of facts charged and conducted verification as to whether the contents of the recording document and those of the recording tape are identical, evidence is itself the contents of the recording tape. Among them, the contents of the defendant's statement are different from those of the defendant's statement in addition to the provisions of Articles 311 and 312 of the Criminal Procedure Act, so long as the defendant does not agree that the recording tape can be used as evidence, it shall be proved that the contents of the defendant's statement recorded in the recording tape have been recorded in a preparatory hearing or during public trial as evidence pursuant to the proviso of Article 313 (1) of the Criminal Procedure Act, and it shall be recognized that the statement was made in a particularly reliable condition (see Supreme Court Decisions 201Do3106, Oct. 9, 201; 2005Do3106, May 27, 2004; 205Do3106, etc., a copy of the recording tape or its contents shall not be proveded.

However, according to the records, it is evident that the first instance court's two recording tapes (Evidence Nos. 1 and 26 of seized articles) conducted verification are not originals, but copies of the original digital tape recording by electronic means, unlike the prosecutor's statement in the verification protocol. The defendant's defense counsel consented to the recording of the above recording tape which copied the original on the date of the first instance court's trial, and there is no other evidence suggesting that the defendant consented to the recording of the above recording tape as evidence. Furthermore, the defendant alleged that there is suspicion of intentional editing because the contents of the conversation recorded on the above verification date are consistent with the entry in the record and the contents of the recording are the defendant's voice. Thus, the defendant's defense counsel confirmed whether the above recording tape copied the contents of the original without artificial opening or did not conduct any other evidence investigation.

The court below acknowledged that the above recording tape was a copy of the original copy, on the ground that it was revealed that the non-indicted 1 recorded in the above recording tape was recorded as a result of the verification of the court of first instance, and that there was no other circumstance to view that the recording was interrupted or fabricated as stated by the defendant. However, the above certification document merely connects the recording recording recording with the reproduction function of the digital recorder in which the recording file, the original, is stored in the process of preparing a transcript, and it is hard to view that the above recording tape was copied without artificial opening. According to the above legal principles, it is hard to view that the evidence of the above recording tape is admissible as evidence as a result of the verification indicated in the first instance examination protocol, and it is hard to view that the contents of the recording tape were inadmissible as evidence of the evidence evidence of subparagraph 1 of the evidence evidence of subparagraph 26 among the recording recording subject to verification, and it cannot be viewed that there was no reason to view that the recording was suspended as evidence of the recording tape as evidence of subparagraph 1 of the above evidence.

Therefore, in light of the above legal principles, the court below found the defendant's statement and the recording recorded in the recording tape of this case to be inadmissible as evidence, although the reasons stated by the court below alone are that it is not sufficient to recognize admissibility of evidence. However, without further examination as to whether there is any evidence that the recording tape of this case can be seen as copied as it is without any artificial opening, the court below erred in the misapprehension of legal principles as to admissibility of evidence such as the recording tape, or in the misapprehension of legal principles as to the defendant's conversation and its contents recorded in the above recording tape of this case. Thus, the court below's judgment which found the defendant guilty of the facts charged of this case was erroneous in the misapprehension of legal principles as to the admissibility of evidence such as the recording tape, and the ground for appeal pointing this out is with merit (the judgment of the court below should be reversed for the same reason,

3. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)