[1] The degree of proof of “the statement or preparation of a witness was made in a particularly reliable state” under Article 314 of the Criminal Procedure Act (=the extent of excluding reasonable room for deliberation)

[2] Whether the legal principle related to the "specific condition" under Article 314 of the Criminal Procedure Act applies to the interpretation of "specific condition" under Article 316 (2) of the Criminal Procedure Act as it is (affirmative)

[1] Article 314 of the Criminal Procedure Act recognizes the admissibility of evidence of a statement or written statement prepared by a witness in cases where the whereabouts of the witness is unknown. Article 312 or 313 of the Criminal Procedure Act recognizes the admissibility of evidence only where strict requirements, such as guaranteeing the right of cross-examination of the defendant or his/her defense counsel with respect to the written statement, such as the statement of witness, etc., are met. As such, the Criminal Procedure Act recognizes exceptions to the basic principles such as direct psychological principle, thereby allowing the admissibility of evidence without any opportunity to cross-examine the person making the statement, etc. In such a case, the “certification of the fact that the statement or written statement of the witness was made in a particularly reliable state” is insufficient to the extent that it is probable, and there is room for reasonable deliberation.

[2] The legal principle related to “specific state” under Article 314 of the Criminal Procedure Act is likewise applicable to the interpretation of “specific state” under Article 316(2) of the Criminal Procedure Act, which is premised on the unknown whereabouts of the person making the original statement.

[1] Articles 308, 312, 313, and 314 of the Criminal Procedure Act / [2] Articles 314 and 316 (2) of the Criminal Procedure Act

[1] Supreme Court Decision 2010Do12652 Decided February 21, 2014 (Gong2014Sang, 785) (Gong2014Sang, 785)

Defendant

Defendant

Law Firm Squa, Attorneys Kim Young-soo et al.

Seoul High Court Decision 2011No2747 decided December 30, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the assertion that the witness statement, etc. prepared without notifying the right to refuse to make a statement is inadmissible

If a document or document recording or recording a suspect's statement is prepared in the course of investigation in an investigative agency, it cannot be viewed differently from a suspect interrogation protocol even if it takes the form of "written statement, written statement, or written statement". Meanwhile, since a suspect's right to refuse to make statements guaranteed by the Criminal Procedure Act is based on the right to refuse to make statements unfavorable to him/her in criminal cases guaranteed by the Constitution and thus, if the investigative agency did not notify the suspect of his/her right to refuse to make statements in advance in interrogation of the suspect, the suspect's statement should be denied even in cases where the discretion of statement is recognized as illegally collected evidence (see Supreme Court Decision 2008Do8213, Aug. 20, 2009).

However, 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, it is reasonable to view that 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. Therefore, even if the right to refuse to make a statement was not notified, the admissibility of the statement is not denied (see Supreme Court Decision 2011Do8125, Nov. 10, 201, etc.).

The court below affirmed the judgment of the court of first instance which admitted admissibility of the above statements, on the ground that the prosecutor's investigation was conducted as a witness in order to prove the facts charged against the defendant, since the prosecutor's investigation was conducted as a prosecutor in the capacity of a witness, it cannot be deemed that the defendant was in the position of a suspect for whom an investigation was initiated after being acknowledged a criminal charge by an investigative agency, and therefore, even if the above person was investigated and was not notified of the right to refuse to make statements by the investigative agency, the statement cannot be admissible as an illegally collected evidence. Furthermore, even though the prosecutor could initiate an investigation into the above person, it cannot be deemed that the prosecutor did not take the form of investigation by a witness rather than the suspect with the intent to escape notice of the right to refuse to make statements even though

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and evidence duly admitted, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine

2. As to the assertion that the statement made by Nonindicted 4 was not proved to have been made under particularly reliable circumstances

A. The prosecutorial protocol on Nonindicted 4 and the part of Nonindicted 4’s written statement

1) Articles 314 and 316(2) of the Criminal Procedure Act provides, “When the statement or preparation is made under particularly reliable circumstances” refers to cases where there is little room for false entry into the contents of the statement or the preparation of the protocol or documents concerned, and there is a specific and external circumstance to guarantee the credibility or voluntariness of the contents of the statement (see Supreme Court Decision 2005Do9561, Apr. 14, 2006, etc.). Furthermore, in cases where the whereabouts of a witness are unknown, it is acknowledged as admissibility of the statement or the written statement made by the witness when it is made or prepared by Article 314 of the Criminal Procedure Act. In addition, it is difficult to acknowledge admissibility of the evidence of the written statement, such as the statement of witness, under Article 312 or 313 of the Criminal Procedure Act, only when such strict conditions are satisfied, such as the right of cross-examination of the defendant or defense counsel, thereby allowing the admissibility of evidence, and thus, it is difficult to grant the witness’s opportunity to cross-examination or 214.

2) According to the records, ① the statement made by the prosecutor’s office and the statement made by the prosecutor’s office with respect to Nonindicted 4 is inconsistent with the Defendant’s remarks to inform the press or supervisory agencies of the corruption of the management of the ○○ Savings Bank, and the part of the above statements on intimidation remarks is contrary to Nonindicted 2 and Nonindicted 3’s statements or evident facts, and ② Nonindicted 4 actively cooperates with the management, such as allowing the Defendant to use the loans under one’s own name when paying KRW 500 million to the Defendant according to the management’s instructions, and it appears that it could not be ruled out that there was a possibility that the Defendant could unilaterally make the above statements from the standpoint of the management of the ○○ Savings Bank at the time when the instant case occurred, ③ in light of the Defendant’s denial of the crime, Nonindicted 4’s additional statements, and the point of prosecution against the Defendant, it cannot be said that there was no special circumstance that the Defendant and Nonindicted 4, who make different statements could not be examined.

Examining these facts in light of the aforementioned legal principles, there seems to be insufficient evidence to acknowledge that there is a reasonable room for deliberation on the fact that the statement made by the prosecution against Nonindicted 4 and the written statement of its preparation was made under particularly reliable circumstances as prescribed in Article 314 of the Criminal Procedure Act.

Nevertheless, the lower court determined that the statement recorded in the above written evidence was made under particularly reliable circumstances, on the sole basis of the circumstances indicated in its holding, even if there are some differences in the contents of the statement made by the prosecutor’s office with respect to Nonindicted 4 and the written statement prepared by the prosecutor’s office, and the overall purport of the statement is consistent, and Nonindicted 4, the Defendant’s senior senior high school, did not have any reason to make any specially unfavorable statement to the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the special circumstances under Article 314 of the Criminal Procedure Act, which affected the conclusion of the judgment

B. Part of Nonindicted 3’s written statements and legal statements that were transferred from Nonindicted 4

1) In principle, the protocol and documents containing the full-time statement or the full-time statement are inadmissible in accordance with the provisions of Article 310-2 of the Criminal Procedure Act. However, the full-time statement is admissible in accordance with the provisions of Article 316(2) of the Criminal Procedure Act only when the person making the original statement is unable to make a statement due to death, illness, residence in a foreign country, or any other reason, and the statement is made under particularly reliable circumstances. The protocol and documents containing the full-time statement are admissible in cases where their admissibility can be recognized in accordance with the provisions of Articles 313 through 314 of the Criminal Procedure Act, and further, it is admissible in accordance with the above requirements under Article 316(2) of the Criminal Procedure Act (see Supreme Court Decision 2005Do9561, Apr. 14, 2006, etc.).

2) However, the legal doctrine related to the “specific state” under Article 314 of the Criminal Procedure Act is likewise applicable to the interpretation of “specific state” under Article 316(2) of the Criminal Procedure Act, which is premised on the person making the original statement’s unknown whereabouts, as well as to the interpretation of “specific state” under Article 316(2) of the same Act. As such, the prosecutor bears the burden of proving that the ○○ Savings Bank Management’s statement made to Nonindicted 4 to Nonindicted 3 was made in a particularly reliable state at the time of paying KRW 500 million to the Defendant to the extent beyond reasonable doubt. According to the records, there is no particular evidence to acknowledge that the statement made to Nonindicted 4 to Nonindicted 3 in this case was made in a particularly reliable state, and further, it is insufficient to recognize that the prosecutor did not assert or prove any specific assertion and proof. Thus, even if Nonindicted 4’s statement made to Nonindicted 3 was made under a particularly reliable state, it is also insufficient

Nevertheless, the lower court determined that Nonindicted 4’s statement was made under particularly reliable circumstances, solely based on the circumstances indicated in its reasoning, including that Nonindicted 3’s statement and legal statement that “I would not take place upon the Defendant’s awareness of his/her position” was prepared by the prosecution that “I would not deliver it to Nonindicted 3.” In so doing, the lower court determined that Nonindicted 4’s statement was made under a particularly reliable condition. In so determining, the lower court erred by misapprehending the legal doctrine on the special status under Article 316(2) of the Criminal Procedure Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)