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The appeal is dismissed.
Reasons
The grounds of appeal are examined.
Article 364 (3) of the Criminal Procedure Act provides that "Evidence that could have been admitted as evidence in the first instance court may be admitted as evidence in the appellate court."
“.......”
Therefore, evidence that had already been admissible in the first instance court is still admissible in the appellate court as it is and can be the basis for the trial, and there is no need for another examination of evidence (see, e.g., Supreme Court Decisions 2009Do377, Apr. 9, 2009; 2004Do8313, Mar. 11, 2005): Provided, That the presiding judge of the appellate court must notify the first instance court of the relationship of evidence and the summary of the result of examination of evidence before entering the examination procedure (Article 156-5(1) of the Regulation on Criminal Procedure). Except in cases where it is obvious clerical error in the trial record, the presiding judge must prove only the trial date that has already been recorded in the trial record, and its probative value is not allowed by materials other than the trial record (see, e.g., Supreme Court Decisions 96Do173, Apr. 9, 196; 200Do312, Jul. 12, 2002).
After notification, the first instance court's evidence relationship and summary of the result of the examination of evidence are stated as follows: (a) notification that water may apply for the examination of evidence necessary to protect the following rights; and (b) hearing the prosecutor's opinion, and stating that "the defendant shall be given an opportunity to make a final statement to the defendant."
According to the above protocol of the public trial, the presiding judge of the court below notified the defendant of the relationship of evidence and summary of the result of examination of evidence prior to the examination of evidence at the first public trial date of the court below, and after giving the defendant the opportunity to make the last statement, it can be seen that the pleading has been closed.
Inasmuch as there is no evidence to deem the above entries in the trial record as an obvious clerical error, the lower court’s appeal is with merit.