[1] Probative value of a recording tape recording the contents of conversation

[2] The case holding that the court below's measure was erroneous by the court below that adopted the defendant's statement part of the first instance court's protocol of verification as evidence of guilt against the Carket tape which recorded the contents of conversation with the defendant without going through the examination procedure for the digital recorder who recorded the contents of conversation

[1] Where a court conducts verification as to whether the contents of the recording document and the contents of the recording tape are identical to those of the defendant and the victim as evidence of facts charged, evidence is the contents of the recording tape itself. Among them, unless the defendant agrees that 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, in order to use the recording tape as evidence of the defendant's statement in a preparatory hearing or during a public trial pursuant to the proviso of Article 313 (1) of the Criminal Procedure Act, it shall be proved that the contents of the defendant's statement in the recording tape were recorded as stated by the victim's statement of the defendant and it was made under particularly reliable circumstances. In addition, if the contents of the recording tape are either copied or copied from the original, or copied from the original without considering its nature's intent or specific technology, it shall be hard to find it as evidence.

[2] The case holding that the court below's measure was erroneous to adopt the defendant's statement part of the first instance court's protocol of verification as evidence of guilt against the Kaco tape which recorded the contents of the conversation with the defendant without going through the examination procedure for the digital recorder who recorded the contents of the conversation with the defendant

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

[1] Supreme Court Decision 96Do1669 delivered on October 15, 1996 (Gong1996Ha, 3484), Supreme Court Decision 97Do240 delivered on March 28, 1997 (Gong1997Sang, 1300), Supreme Court Decision 2001Do3106 delivered on October 9, 2001 (Gong2001Ha, 2496), Supreme Court Decision 2001Do6355 Delivered on June 28, 2002, Supreme Court Decision 2004Do1449 Delivered on May 27, 2004, Supreme Court Decision 2004Do6323 Delivered on February 18, 2005

Defendant

Defendant

Seoul Western District Court Decision 2005No68 Decided April 14, 2005

The appeal is dismissed.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below adopted the evidence of the first instance court, such as the victim's statement at the police and the first instance court's statement at the time of each crime, and adopted the part of the defendant's statement at the first instance court's verification of the contents of conversation between the defendant and the victim at the time of each crime as evidence, and additionally adopted it as evidence, based on the evidence of the first instance court's conviction of each of the above charges on the grounds that the defendant's statement at the time of the crime as to the recording tape at the first instance court's testimony at the time of each crime, the admissibility of evidence is recognized in light of the victim's statement as the author of the above recording tape and the contents and circumstances of the conversation, etc., and it is reasonable to judge the first instance court guilty of each of the above charges, but it is reversed and sold it on the ground of unfair sentencing.

Where a court conducts verification as to whether the contents of the recording document and the contents of the recording tape are identical to those of the defendant and the victim as evidence of facts charged, evidence is itself of the conversations recorded in the recording tape. Among them, unless the defendant agrees that the contents of the defendant's statement can be admitted as evidence because they are different from those of the defendant's statement in addition to the provisions of Articles 311 and 312 of the Criminal Procedure Act, in order to use the recording tape as evidence of the defendant's statement in the recording tape verification protocol as evidence, it shall be proved that the contents of the defendant's statement recorded in the recording tape was recorded in a preparatory hearing or during a public trial pursuant to the proviso of Article 313 (1) of the Criminal Procedure Act, and further it shall be acknowledged that the statement was made in a particularly reliable state of the defendant's statement by the victim who prepared the recording tape at a preparatory hearing or during a public trial (see, e.g., Supreme Court Decisions 2001Do3106, Oct. 9, 2001; 2004Do44).

In addition, the recording tape does not have the signature or seal of the originator or statementer due to its nature, and considering the risks of editing or manipulating the contents of the recording, it shall be proved that the contents of the recording are the original copy without any artificial adaptation such as editing in the duplication process, and if there is no proof, it shall not be easily admitted as evidence (see Supreme Court Decisions 2001Do6355, Jun. 28, 2002; 2004Do6323, Feb. 18, 2005, etc.). However, since the recording tape which the court below found the defendant guilty of using the original recording as evidence, it shall not be admitted as evidence that the victim's recorded the contents of the recording in the digital recording tape, which is a legitimate evidence of the defendant's testimony, was recorded in the digital recording tape, and it shall not be admitted as evidence that the defendant's remaining contents of the recording recording or the contents of the evidence recorded in the digital recording recording without the consent of the court below that it should be admissible as evidence.

Meanwhile, according to the records, the judgment of the court below that the defendant's act of demanding money and valuables does not constitute a legitimate exercise of rights is just, and there is no error of law such as misunderstanding of legal principles or omission of judgment as to legitimate acts in accordance with social rules, as otherwise alleged in the grounds of appeal. Furthermore, the argument in the grounds of appeal as to abuse of public prosecution right, which is premised on the victim's own initiative or planned manipulation, is not acceptable, and there is no error of law such as misunderstanding of legal principles or omission of judgment,

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae-sik (Presiding Justice)