[1] The meaning and limitation of the principle of free evaluation of evidence under Article 308 of the Criminal Procedure Act

[2] In a case where the Defendant, a member of the National Assembly, was prosecuted three times as receiving illegal political funds from the representative director Eul corporation Eul, and Eul stated that the Defendant provided funds as political funds in the summons investigation conducted by the prosecutor's office, but the court of first instance reversed the fact that the Defendant provided funds as political funds but denied the fact that the Defendant provided funds as political funds and made a different statement in the use of funds, the case holding that the judgment below which found the Defendant guilty of all the charges by taking account of Eul's prosecutor's statement, etc., did not err by exceeding the bounds of the principle of free evaluation of evidence

[1] [Majority Opinion] Articles 307(1) and 308 of the Criminal Procedure Act provide that fact-finding shall be based on evidence, and the probative value of evidence shall be based on the discretion of the judge. This means that a judge’s acceptance and use of necessary evidence among the evidence admissible by a judge and evaluation of the substantial value of the evidence belongs to the judge’s free evaluation of evidence. Therefore, insofar as it does not violate logical and empirical rules by either rejecting sufficient probative evidence without any reasonable ground or by admitting and using evidence clearly contrary to objective facts without any reasonable ground, a judge may recognize facts by adopting free evaluation of evidence.

[Dissenting Opinion by Justice Lee In-bok, Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Park Poe-young, and Justice Kim So-young] Even if collecting evidence against a person who is not the defendant and did not reach the extent that the admissibility of evidence is denied by failing to comply with the procedures prescribed by the Constitution and the Criminal Procedure Act, where it is difficult to recognize the reasonableness of an investigation in light of the significance and purpose of the existence of a criminal justice procedure aimed at identifying the substantive truth and guaranteeing fundamental human rights by summonsing a person who is not the defendant and hearing a statement, and preparing a series of evidence collection processes in the protocol exceeds the prescribed form of investigation, and thereby aiming at guaranteeing the fundamental human rights, there is room for false involvement in the investigation process, there is a special circumstance to

In addition, in light of the principle of court-oriented principle and the purpose of the hearsay rule, in cases where a person other than the defendant gives an oath and gives a testimony different from that of a statement made at an investigation agency on the trial date, there is objective data to support the credibility of a free statement made at an investigation agency by undergoing a teaching examination in an open court and denying the credibility of a statement made at an investigation agency as evidence and taking the statement made at an investigation agency as evidence. In this case, the judgment of abstract credibility should not be limited to the judgment of credibility, and if there is no obvious reason for the difference in the statement, it should be more weighted to the free statement made at the court while imposing the burden of perjury.

[2] In a case where the defendant, a member of the National Assembly, was prosecuted on three occasions against the representative director Eul corporation Eul, which received approximately KRW 900 million illegal political funds from the defendant, and Eul stated that the defendant provided funds as political funds in the summons investigation of the prosecutor's office, but the court of first instance reversed this fact in the court of first instance, but denied the fact that the defendant provided funds as political funds, and otherwise stated the use of funds, the case held that the court below erred by misapprehending the principle of free evaluation of evidence against the limitations of the prosecutor's statement in light of the fact that the defendant's testimony should be more weight than the prosecutor's statement in accordance with the basic principles of criminal procedure, such as the principle of court priority and the principle of substantial direct examination, even if it is difficult to believe Eul's legal statement, the credibility of the prosecutor's statement that the defendant provided funds as political funds from the defendant merely because Eul reversed Eul's prosecutor's statement in the court below's court, and the defendant's statement itself cannot be denied, objective reasonableness, consistency before and after the statement itself, and whether there are conflicting with the charges.

[1] Articles 307(1) and 308 of the Criminal Procedure Act / [2] Article 45(1) of the Political Funds Act; Articles 244-4(1) and (3), 307, and 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2007Do1755 decided May 29, 2008 (Gong2008Ha, 946)

Defendant 1 and one other

Defendants

Law Firm LLC et al. and four others

Seoul High Court Decision 2011No3260 decided September 16, 2013

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to Defendant 1’s ground of appeal

A. The burden of proving the criminal facts prosecuted in a criminal trial is to be borne by the prosecutor, and the conviction is to be based on the probative evidence which has probative value that makes a judge feel true to the extent that there is no reasonable doubt. However, since it is not necessary to exclude from a daily doubt all the suspicions that may be presented for the recognition of guilt, the “reasonable doubt” in this context refers to not only a vague doubt, misjudgment, or conceptual possibility, but also a doubt with objectivity and rationality to the extent that it is probable that there is a fact inconsistent with the facts to be proven in light of logical and empirical rules (see, e.g., Supreme Court Decision 2004Do221, Jun. 25, 2004).

Meanwhile, Articles 307(1) and 308 of the Criminal Procedure Act provide that fact-finding shall be based on evidence, but the probative value of such evidence shall be based on the discretion of the judge. This means that a judge’s acceptance and use of necessary evidence and evaluation of the substantial value of such evidence belongs to the judge’s free evaluation of evidence to acknowledge facts. Therefore, insofar as it is not contrary to logical and empirical rules by rejecting sufficient probative evidence without any reasonable ground or by adopting and using evidence clearly contrary to objective facts without any reasonable ground, a judge may accept evidence with free evaluation of evidence and recognize facts (see Supreme Court Decision 2007Do1755, May 29, 2008, etc.).

B. The summary of the facts charged against Defendant 1 is as follows: ① from March 31, 2007 to April 2007, Defendant 1, the representative director of ○○ Construction, Defendant 1, who was Nonindicted 1, to KRW 150 million in cash contained in the entrance room on the apartment complex near Defendant 1’s apartment complex, and KRW 150 million in face value (hereinafter “the instant KRW 100 million check”) and USD 50,000 in cash (hereinafter “the primary political fund”); ② From April 30, 2007 to May 207, Defendant 1’s apartment complex included USD 130,000 in the entrance room for travelling at Defendant 1’s apartment complex, and KRW 174,00 million in cash (hereinafter “political funds”) from KRW 305,00,000 in the first place to August 27, 209.

The court below found Defendant 1 guilty of all the facts charged on the premise that Non-Indicted 1’s consistent prosecutorial statement that he provided approximately KRW 900 million in total to Defendant 1 on three occasions at the same time and place as the facts charged was reliable even if Non-Indicted 1 reversed his prosecutorial statement in the court of first instance, on the premise that it was reliable even if Non-Indicted 1 reversed his prosecutorial statement in the court of first instance.

C. The reasoning of the lower judgment reveals the following facts.

(1) The investigation of this case was conducted through the process of investigating or submitting data, such as the timing and details of raising funds more than three times, including the statement of KRW 100 million and USD, in conformity with the facts charged, by Non-Indicted 1, who was summoned and investigated by the prosecutor's office, first stated the fact that he provided political funds to Defendant 1. The investigation of this case was conducted through the process of investigating or submitting the data, such as the statement of Non-Indicted 2, the copy of the so-called B book prepared by Non-Indicted 2, the collection of claims, and the list of claims collection, etc., in order, on March 30, 2007 and April 30, 207, similar to the timing of receiving the first and second political funds.

(2) The timing and details of raising funds as stated in the facts charged are acknowledged through objective financial data, such as deposit account tracking results, money exchange records, etc. Nonindicted Party 1 also believed that Nonindicted Party 1 also created approximately KRW 900 million with cash and USD 3 times in the court of first instance, and the check of KRW 100 million in the instant case. However, unlike the prosecutorial statement, unlike the use of each of the funds raised by Defendant 1, he stated to the effect that he lent the funds to Defendant 2, who served as the assistant of Defendant 1, or used them as expenses for the construction of roads. The lower court, as well as the first instance court that acquitted Defendant 1, did not believe that Nonindicted Party 1’s legal statement on such use.

(3) Nonindicted 2, upon Nonindicted 1’s instruction, stated to the effect that Nonindicted 1 separately entered in the B accounting book, etc. of “Defendant 2” in the case of funds to be delivered to Defendant 2, on the following grounds: (a) Nonindicted 1 emphasized each kind of attention in the process of raising funds; and (b) emphasized that “political funds to be delivered to Defendant 1” during the process of raising funds; and (c) Nonindicted 2 stated to the effect that, in the case of funds to be delivered to Defendant 2, Nonindicted 1 stated to the effect that “Defendant 2” was “the money to be delivered to Defendant 2” and “Defendant 2.”

Nonindicted 2 recorded the details of the deposit and the details of the use of funds in the bank account for the management of ○○○ Construction in accordance with Nonindicted 1’s order and entered the details of Nonindicted 1’s non-indicted 2’s entry into and departure from the bank account, and entered the B book confirmed by Nonindicted 1 as “the cash of KRW 130 million and USD 170,000,000 and USD 174,000,000, August 27, 2007,” which correspond to the whole and part of the secondary fund and the third fund-raising funds. The list of claims collected separately prepared by Nonindicted 2, along with the indication of “won,” “The payment of KRW 30,00,000,000,000,000,000 won, and KRW 50,000,000,000,000,000.

(4) Around May 2004, Non-Indicted 1, as the introduction of Non-Indicted 3 to his father, leased the office space of the local party members council with the same Defendant 1 at a price lower than the surrounding market price. As a result, he provided meals with Defendant 1 and received Nexta as gift from Defendant 1. In addition, Non-Indicted 1, on December 20, 2006, he provided meals with Non-Indicted 4 et al., who was first known to Defendant 1’s general branch of the Ri branch of the △△ Group, and did not know until that time, and took part in Defendant 1’s apartment interior work around March 2007. The mobile phone number of Defendant 1’s personal mobile phone number was stored in Defendant 1’s cell phone name, and on February 25, 2008, Defendant 1 was phoneed to Non-Indicted 1 for the first 25 minutes.

Non-Indicted 1 hospitalized on February 27, 2008 due to the shock of the ○○ Construction, and on the same day, Defendant 1 received contact and directly saw Non-Indicted 1’s illness. On February 27, 2008, Defendant 2 sent KRW 200 million in cash to Non-Indicted 5, a driver of the ○ Construction on February 28, 2008, the day after Defendant 1 directly asked Non-Indicted 1, who is the driver of the ○○ Construction,. In addition, around February 15:30 on February 28, 2008, Non-Indicted 1 called Defendant 1 to Defendant 1, and around 15:50 after that 20 minutes, Defendant 1 called Non-Indicted 1 to Non-Indicted 1 for 31 seconds, respectively.

(5) On February 23, 2009, Nonindicted 6, Defendant 1’s partner, paid the lessor the remainder of the deposit for lease on a deposit basis amounting to KRW 189 million, which included the KRW 100 million check.

In addition, Nonindicted 6 did not have any contact with Defendant 2 that it lent the KRW 100 million check immediately after the media report on the KRW 100 million check of this case, and received a copy of the check from the last holder of the KRW 100 million check of this case and delivered it to Defendant 1.

D. The summary of the judgment of the court below is as follows with respect to major evidence and facts, etc. which are subject to the recognition of the facts charged against Defendant 1.

(1) Considering the fact that Nonindicted 1’s prosecutorial statement appears to have naturally explained the Nonindicted 1’s own experience, not artificially created, there is no reason to suspect that the Nonindicted 1’s prosecutorial statement on the course, place, and method of delivery of political funds to Defendant 1 was false. In light of the aforementioned facts, it may be recognized that Nonindicted 1 and Defendant 1 had a considerable relationship with each other, and it does not seem that there was a relationship not having a relationship between Nonindicted 1 and Defendant 1, and it does not appear that there was a relationship not having been capable of giving and receiving political funds. All of the circumstances alleged by Nonindicted 1, such as Nonindicted 1, such as the distribution of political funds to the Defendants or Defendant 1, fear of additional indictments, and Nonindicted 7’s abduction, etc., all of which are alleged as a motive to make a false statement at the prosecutorial office, are difficult to serve as a basis

(2) Considering the fact that the content of Nonindicted 2’s statement is consistent with objective data and persuasive, there is no particular reason to make a false statement, and that Nonindicted 1 appears to be a political fund that would have been granted to Defendant 1, the credibility of Nonindicted 2’s statement, which is the purport that the fund was given to Defendant 1, may be acknowledged. Moreover, the relevant part of Defendant 1 stated in the documents, such as the B accounting book prepared by Nonindicted 2 and the list of claims to be collected, also have credibility or accuracy as stated in Nonindicted 2’s statement.

(3) Even if there is no direct probative value as to Nonindicted 1’s delivery of the created funds to Defendant 1, there is probative value as to the facts charged in full view of the objective financial data on the creation of funds and exchange details consistent with the facts charged, and the details on the purchase of a bags for travel that Nonindicted 1 carried out with the funds.

(4) Nonindicted 1 made a statement at the prosecutor’s office to the effect that Defendant 1 returned KRW 200 million immediately after Defendant 1’s first default on ○○ Construction. In fact, Nonindicted 1 received KRW 200 million from Nonindicted 1 on February 28, 2008 after the date on which Nonindicted 1’s custody was sent to Nonindicted 1, 200 million, and immediately thereafter, Defendant 1 and Defendant 1 are not Defendant 2, but Defendant 1.

(5) The KRW 100 million Check was used by Nonindicted 6, Defendant 1’s partner, and Defendant 2’s statement of Defendant 2 and Nonindicted 6 that Defendant 6 lent the KRW 100 million Check to Nonindicted 6, repaid Nonindicted 6 in four checks, and Nonindicted 6 appears to have no money transaction to the previous, and it is difficult to say that it is an ordinary form of monetary transaction. We affirm the judgment of the first instance court rejecting the credibility of each of the above statements on the grounds that it is difficult for Defendant 2 to use the KRW 100 million Check to the Defendant 1’s partner.

E. Examining the reasoning of the lower judgment in light of the evidence and records duly adopted and examined by the lower court and the first instance court based on the aforementioned facts and the summary of judgment, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, such as failing to exhaust all necessary deliberations in the process of finding Defendant 1 guilty of all the facts charged, and adopting evidence without probative value manifestly contrary to objective facts, etc., or by misapprehending the legal doctrine regarding the credibility or probative value of evidence, the burden of proof and the degree of proof for conviction, the absence of on-site evidence, etc., or by violating the principle of court-oriented and direct deliberation. In addition to the reasons appropriately stated by the lower court, the following circumstances may be cited.

(1) The fact that Nonindicted Party 1 mixed with cash and USD three times as indicated in the facts charged and raised a total of KRW 900 million each by 300 million is recognized by objective financial data, as well as the part that Nonindicted Party 1 is dead in the first instance court.

However, Non-Indicted 1 made a statement at the prosecution that the funds to be raised were directly provided to Defendant 1, but the court of first instance reversed this in the court of first instance, thereby lending them to Defendant 2 or using them as street funds for the purpose of obtaining orders from the Corporation. However, the court of first instance that acquitted Defendant 1 was also examined as a witness of Non-Indicted 1, Non-Indicted 2, Non-Indicted 8, and Non-Indicted 9, and then directly made the statement, and then, the court of first instance held that Defendant 2, who had no monetary transaction with Non-Indicted 1, borrowed 30 million won in cash without due date or interest agreement prior to this day, is against the law of experience, and there is no reason to receive 30 million won in cash and 10 million won check, and that Non-Indicted 8 or Non-Indicted 91, and that the court of first instance rejected the fact that Non-Indicted 1 received US dollars in relation to the funds for the Corporation, and did not reverse or reverse the examination of the court of first instance on the grounds of first instance.

Therefore, there may be a reasonable doubt that the facts alleged in the court as the source of the use of Nonindicted Party 1’s funds may be true. Thus, the core of this case is not whether Nonindicted Party 1’s prosecutorial statement on the source of the use of the funds raised and Nonindicted Party 1’s prosecutorial statement on the source of the use of the funds, but whether it is possible to recognize the credibility of Nonindicted Party 1’s prosecutorial statement that he provided the funds to Defendant 1

However, even in light of the fact that Nonindicted 1’s legal statement should be more weighted than that of his/her prosecutorial statement in accordance with the basic principles of criminal procedure, such as the trial-oriented principle and the principle of substantial direct examination, the credibility of his/her prosecutorial statement that Nonindicted 1 provided funds to Defendant 1 as political funds cannot be denied merely on the ground that Nonindicted 1 reversed his/her prosecutorial statement in the court. In addition, in the instant case where Nonindicted 1’s direct statement does not recognize the credibility of the core part of his/her legal statement in the first instance trial, the lower court did not re-examine Nonindicted 1 as a witness, and cannot be deemed to have violated the principle of trial-oriented and direct examination on the ground that the lower court did not directly examine Nonindicted 1 as a witness.

Ultimately, the credibility of Non-Indicted 1’s prosecutorial statement should be determined by examining whether the credibility of Non-Indicted 1’s statement can be reinforced through other objective evidence or circumstantial facts, along with the rationality, objective reasonableness, consistency before and after the statement itself, and existence of circumstances inconsistent with the facts charged.

(2) On such premise, in full view of the following circumstances revealed by the reasoning of the lower judgment and the evidence duly adopted and examined by the lower court and the first instance court, the credibility of Nonindicted 1’s prosecutorial statement on the use of the fund as above is sufficiently recognized.

(A) Even though Nonindicted Party 1 reversed his prosecutorial statement as above in the court of first instance, it recognized that he consistently stated that he provided political funds to Defendant 1 after undergoing an investigation by the prosecutor several times at the court of first instance. However, it is difficult to readily understand that Nonindicted Party 1, who voluntarily expressed that Nonindicted Party 1 was subject to deliberation on the existence and the part of the court of first instance, referring to the false fact that he did not at all against Defendant 1, who was expressed that he had been subject to deliberation on the part of the court of first instance, or that he did so by exaggeration or distortion. There is no special circumstance to reasonably doubt that Nonindicted Party 1 had made a false, exaggerated, or distorted statement at the prosecutor’s office in order to gain any benefit or escape from the difficult situation.

In addition, the evidence that Nonindicted Party 1 first stated at the prosecution that he provided political funds to Defendant 1, including the instant KRW 100 million and USD, is sufficient to support Nonindicted Party 1’s prosecutor’s statement as a whole in order to support the circumstances, such as the objective financial data consistent with the details of raising funds in the facts charged, receipts (related to the first and second receipt of political funds) for travel that Nonindicted Party 1 carried out and transported political funds, Nonindicted Party 2’s statement that took a key role in managing funds and raising funds, and Nonindicted Party 2’s statement that Nonindicted Party 2 carried out a separate preparation before the instant case was at issue, or the list of claims collection, etc., were examined or submitted in order.

(B) The KRW 100,00 Check, which is understood as a part of the primary political fund based on financial data, was used by Nonindicted 6, Defendant 1’s partner, and Defendant 2 returned KRW 200,000 to Nonindicted 1 on February 28, 2008 (not clear whether it is included in any of the primary, secondary, and third political funds).

However, each of the statements made by Defendant 2 and Nonindicted 6, the purport of which Defendant 2 lent KRW 100 million to Nonindicted 6, is as seen earlier, is that the lower court, as well as the first instance court, were unable to believe its credibility, and thus, the person to whom the KRW 100 million check was delivered from Nonindicted 1 is bound to be Defendant 1. In addition, as long as it is impossible to believe that Nonindicted 1 lent KRW 100 million check and KRW 200 million to Defendant 2, Defendant 2 is merely a mere delivery agent of KRW 200 million, and the subject of the return is separate. In addition, considering that Defendant 1 returned KRW 100 million to Nonindicted 1 and Nonindicted 20 million after the second day of February 27, 2008, and that it is reasonable to view that it conforms with the logical and empirical rules, including that it was returned to Nonindicted 1 and Nonindicted 120 million won, immediately after the second day of February 28, 2008.

As such, if the facts revealed objectively that Defendant 1 received KRW 200,000,00,000, which was included in the first-class funds and the first-class or third-class funds raised by Defendant 1, which were included in the funds, were objectively revealed, it would be reasonable to conclude that the funds raised by Defendant 1 (including USD 100,00,00 and USD 1,000,00,000, which were similar to each other through a complex process, such as the method of raising funds deposited in USD 60,00 by using several employees and raising funds stored in the bank account of an affiliate company) were offered to Defendant 1, who is the same person, all of the funds raised by Defendant 1. In short, this is consistent with Nonindicted 1’s prosecutorial statement. In other words, if evidence consistent with the part of Nonindicted 1’s prosecutorial statement on the funds raised by KRW 90,000,000,000,000,000,00,00).

(C) As the chief of ○○○ Accounting Division, Nonindicted 2’s statement at the prosecution and court, which participated in the above KRW 900 million capital and prepared B accounting books, and Nonindicted 1’s prosecutorial statement on the use of the fund, including corresponding B accounting books and claims collection lists, are strongly supported.

As seen earlier, Nonindicted 2 consistently testified from the prosecution to the lower trial that Nonindicted 1 was aware that the funds that Nonindicted 2 directed to raise three times were to be provided to Defendant 1, and Nonindicted 1 also stated at the prosecution that Nonindicted 2 was aware of such facts. There is no apparent circumstance that Nonindicted 2 was able to deem that there was any motive or personal interest in making a false statement by gathering Defendant 1. It is difficult to find any circumstance to deem that Nonindicted 2 and Nonindicted 1, together with Nonindicted 1, made a statement in advance that Nonindicted 2 would have provided political funds to Defendant 1.

The statement of Nonindicted Party 2 is consistent with the entries in B account books (the details of Nonindicted Party 2’s expenditure are prepared at time and confirmed by Nonindicted Party 1) that Nonindicted Party 2 selected as funds (the second and third political funds) granted to Defendant 1, and the list of claims recovery, etc. directly indicated by Nonindicted Party 2 as funds granted to Defendant 1 (the first and third political funds). The B account books prepared by Nonindicted Party 2 and the list of claims collection claims collection are all written before the investigation of this case begins. There are many parts irrelevant to Defendant 1, such as funds delivered to Defendant 2. It is recognized that all the contents are correct, and there is no special error or manipulation only in the parts related to Defendant 1.

Therefore, in combination with other evidence, such as a receipt for a travel room, purchased by Nonindicted 2 with Nonindicted 1’s instructions, and objectively revealed that KRW 300 million out of KRW 900 million was delivered to Defendant 1 as seen earlier, the entire prosecutorial statement of Nonindicted 1, which is not only a specific part of the prosecutorial statement of Nonindicted 2, has sufficient value of evidence to reinforce the credibility of the entire prosecutorial statement of Nonindicted 1. The aforementioned content of Nonindicted 2’s statement or B’s account book is not appropriate to automatically divide it into contents and separately determine its credibility or probative value, and there is no ground for further examination.

2. As to Defendant 2’s ground of appeal

A. Political funds prohibited by the Political Funds Act refer to all money, etc. provided to persons who engage in political activities for the purpose of political activities. On the other hand, whether a person who contributed political funds actually uses such funds for political activities after the receipt of political funds by means not specified in the Political Funds Act leads to the completion of a crime of illegal receipt of and receipt of political funds, does not affect the establishment of crimes (see, e.g., Supreme Court Decision 2010Do1786, Jun. 9, 2011).

B. Examining the reasoning of the judgment below in light of the aforementioned legal principles and relevant regulations and the evidence duly admitted by the court below, the court below is just in finding Defendant 2 guilty of all the charges of this case (excluding the part on which the court below acquitted Defendant 2). Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the law of logic and experience and exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal principles on political funds.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Lee In-bok, Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Park Poe-young, and Justice Kim So-young as to the judgment on Defendant 1’s appeal.

4. Dissenting Opinion by Justice Lee In-bok, Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Park Poe-young, and Justice Kim So-young as to the determination on Defendant 1’s appeal

The majority opinion is just in recognizing the credibility of Non-Indicted 1's prosecutor's statement and recognizing the facts charged of this case against Defendant 1 as its main evidence, and there is no violation of law such as failing to exhaust all necessary deliberations or exceeding the bounds of the principle of free evaluation of evidence.

However, we cannot agree with the majority opinion for the following reasons. Of the judgment below, the part against Defendant 1 should be reversed.

A. This is the key issue in the instant case. This is whether hearsay evidence and original evidence are superior probative value of either of them. This is not a matter of simple selection of evidence or fact-finding. In a case where one person’s prosecutorial statement and court testimony are contents inconsistent with each other, the question-finding statement made between the prosecutor and the person who made the statement at any protocol at the public prosecutor’s office does not state the contents as they are, but rather state the contents of the statement made between the prosecutor and the person who made the statement at any protocol at the prosecutor’s office, i.e., the statement made by the prosecutor and the person who made the statement at the public court stationed in the criminal trial, or, if the statement made by the judge at the public court presided over the criminal trial, the oath to be punished for perjury, and whether to believe the witness’s statement made during the process of verifying evidence through the cross-examination by the prosecutor and the defendant, and the supplementary examination by the judge is the key issue in this

For the purpose of comparison of probative value, that is, hearsay evidence, namely, that the prosecutor’s statement must be admissible, and if the admissibility of evidence is not recognized, the discussion itself is not established. First of all, the written statement prepared by Nonindicted Party 1 in the investigation process of the instant case is inadmissible. This is because the investigative agency’s failure to record its investigation process violates the procedure prescribed in Article 244-4(3) and (1) of the Criminal Procedure Act (see Supreme Court Decision 2013Do3790, Apr. 23, 2015). This written statement is based on this question and answer, and the prosecutor’s office’s statement on Nonindicted Party 1 prepared thereby may be deemed to have acquired the admissibility of evidence difficult by Nonindicted Party 1’s legal statement, but it is pointed out that the credibility of the written statement in this case is significantly damaged by punishing him/her. This is examined in detail.

B. 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 determined by the judge’s free judgment is appropriate for the discovery of substantial truth, and does not mean that arbitrary judgment by the judge is allowed. Even if a fact-finding judge has a prior right to the determination of evidence, such judgment is subject to restrictions consistent with logical and empirical rules in line with the basic principles of criminal procedure for the examination of substantial truth and the guarantee of fundamental human rights (see Supreme Court Decision 2007Do3031, Sept. 7, 2007, etc.).

Even if the admissibility of evidence does not reach the extent that it is denied because it did not follow the procedures prescribed by the Constitution and the Criminal Procedure Act while collecting evidence against a person other than the defendant by the investigative agency, it is difficult to recognize the reasonableness of the investigation in light of the significance and purpose of the existence of criminal justice proceedings aimed at identifying the substantive truth and guaranteeing fundamental human rights by summonsing the person other than the defendant and hearing the statement and preparing it in the protocol, and it is difficult to recognize the reasonableness of the investigation in light of the significance and purpose of the existence of criminal justice proceedings aimed at guaranteeing the fundamental human rights. In a case where there is room for false intervention, there is a special circumstance that there exists objective evidence or circumstantial

In addition, in light of the principle of court-oriented principle and the purpose of the hearsay rule, in cases where a person other than the defendant gives an oath and gives a testimony different from that of a statement made at an investigation agency on the trial date, there is objective data to support the credibility of a free statement made at an investigation agency by undergoing a teaching examination in an open court and denying the credibility of a statement made at an investigation agency as evidence and taking the statement made at an investigation agency as evidence. In this case, it is not limited to the determination of abstract credibility, and if there is no obvious reason to believe that the statement has changed, it is a principle that the free statement made at a court should be added to the degree of perjury, while imposing a burden on perjury.

C. (1) First, we examine the circumstances in which Nonindicted 1 made a prosecutorial statement that corresponds to the facts charged in the instant case against Defendant 1.

(A) At the time of the commencement of prosecutorial investigation, Nonindicted 1 was detained on June 5, 2008 on the charge that he acquired the proceeds of selling in lots while conducting the prosecutorial investigation, and was sentenced to imprisonment for three years due to a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), etc., and was committing a convict life. Nonindicted 1 said that, in the course of the investigation conducted by the prosecutor’s investigation, Nonindicted 7, who was aware of the details of the collection of the funds, would be in charge of the collection of the funds while he was forced to pursue the use of the funds created in the course of operating the ○○○ Construction, etc., and that, in cooperation with the investigation, there was a preference such as parole

(B) Nonindicted 1 revealed to Nonindicted 5, etc. who took advantage of the management right of the company, expressed his intention to find the company through the investigation, and made a statement to Defendant 1 by the prosecution that he provided political funds to Defendant 1, thereby seriously considering whether the statement should be maintained as it is.

(C) Meanwhile, Nonindicted Party 1 was transferred to the Seoul detention center on March 31, 2010 and was investigated by the Seoul Central District Prosecutors’ Office from April 1, 2010 to December 20, 2010, which was the date of examination of the first instance trial, appeared to have been present at least 70 times and undergone an investigation. Nevertheless, only one written statement and five written statements, which correspond to the facts charged in the instant case against Defendant 1, were prepared from April 4, 2010 to May 11, 2010, and were present at the Prosecutor’s Office more than 60 times, there is no evidence to find out which Nonindicted Party 1 had made a statement after undergoing any investigation.

(D) On December 20, 2010, Nonindicted Party 1 appeared as a witness at the court of first instance on December 20, 2010, and testified that the statement in the prosecutor’s protocol is reversed and that there is no way to provide Defendant 1 with political funds.

(2) If Non-Indicted 1 fails to disclose the details of the legitimate use of non-indicted 1’s non-indicted 1’s statement in which the user is unclear, it may be subject to criminal punishment for the crime of embezzlement and extension of a prison life for the purpose of criminal investigation by allowing the prosecutor to initiate an investigation into Non-Indicted 5, etc. in return for cooperation in the prosecutor’s office, and thus, there was a possibility that the prosecutor made a false or exaggerated statement about whether to provide political funds to Defendant 1 or its scale. In such a situation, the prosecutor prepared the statement that corresponds to the facts charged in the instant case against Defendant 1 by Non-Indicted 1, who appeared in the court of first instance for more than seven months from the date of witness examination until the date of the first instance trial examination, and thus, it is difficult to acknowledge that Non-Indicted 1’s statement was contrary to the principle of ensuring the legality of the investigation process by transparent acquisition of evidence, and thus, it is difficult to acknowledge that the prosecutor did not have any objective credibility in the prosecutor’s statement in the process of investigation beyond the principle of evidence collection.

Non-Indicted 1’s prosecutorial statement at the court of first instance, in light of the principle of public trial-oriented trial and the purpose of the hearsay rule, it is difficult to readily recognize the credibility of Non-Indicted 1’s prosecutorial statement, even in light of the following: (a) Non-Indicted 1’s appearance in the court of first instance and being given a warning of perjury; and (b) immediately reverse the prosecutorial statement; and (c) there was no obvious reason to suspect the authenticity of the statement, such as Defendant 1’s intimidation or reconstition.

D. The prosecutorial statement of Nonindicted Party 1, except the part concerning Defendant 1’s receipt of political funds, is not supported by objective evidence or circumstantial facts.

(1) Of Non-Indicted 1’s prosecutorial statement, the part concerning the receipt of the first political fund may be supported by objective evidence and circumstantial facts. Of course, there is no doubt about the receipt of the first political fund. However, Defendant 2, who is Defendant 1’s secretary, returned cash of KRW 200 million to Non-Indicted 1 through Non-Indicted 5 on February 28, 2008, and Defendant 1’s partner Non-Indicted 6 was used as the fund in advance on February 2009, so long as it was revealed that it was difficult to find that the first receipt of the political fund was erroneous by the lower court or the Majority Opinion. In light of the relationship between Defendant 2 and Defendant 1 and Non-Indicted 1, Defendant 200 million won, Non-Indicted 1’s phone liaison and Non-Indicted 6’s prosecutorial office’s relationship between Defendant 1 and Non-Indicted 1, and Non-Indicted 150,000,000 won, the first receipt of the political fund can be objectively considered to be supported.

(2) However, the part concerning the receipt of secondary and third political funds among Non-Indicted 1’s prosecutorial statements is not supported by objective evidence or circumstantial facts.

(A) While Nonindicted Party 2, who was the head of ○○○○ Accounting Division, stated that Nonindicted Party 1’s order prepared B books on the details of the deposit, withdrawal, and use of Nonindicted Party 1’s deposit account for the management of funds, the copy of the B books does not indicate Defendant 1 as the place of use. As such, insofar as the credibility of Nonindicted Party 2’s statement cannot be acknowledged, the substantial probative value of the copy of the B books cannot be recognized.

However, on April 5, 2010, Nonindicted Party 2 made a statement at the time of the first prosecutor’s investigation that “it created KRW 300 million in the first half of 207 as entertainment expenses for Defendant 1, and KRW 200 million in the around August 2007.” On April 6, 2010, Nonindicted Party 2 made a statement at the prosecutor’s investigation that “after the prosecutor’s investigation on April 5, 2010, Nonindicted Party 2 submitted a copy of the B book to Nonindicted Party 1 or Defendant 1, who sent it to Nonindicted Party 1, and discovered a copy of the B book in the middle of the vehicle, and then submitted a copy of the B book in lieu of the original copy of the B book. In addition, even though Nonindicted Party 2’s statement was changed on February 2, 2008, it is difficult to obtain a copy of the B book by not later than two years prior to the receipt of the copy of the B book.”

In addition to the raising of funds, Non-Indicted 2 seems to have never participated in the delivery of funds, and see only the ambiguous words of Non-Indicted 1 as to the place of the use of funds, and made a statement to Defendant 1 that he thought to be a political party in the vicinity of Non-Indicted 1. Although Non-Indicted 1 was entrusted with the management of funds, Non-Indicted 1 was in the situation of investing or borrowing funds from Non-Indicted 2 in connection with the operation of ○○○ Construction, and the location of the use of the funds is unclear, it is difficult to exclude the possibility that he would have pretended to be provided as political funds to Defendant 1 for the purpose of the company, even with personal deduction of ○○ Construction Fund.

In reliance on Non-Indicted 2’s statements as they are, it is too much weak.

(B) The collection list of claims and the details of entertainment expenses, etc. are all prepared in a lump sum without Nonindicted 2’s confirmation from Nonindicted 7, who was in charge of the collection of claims at Nonindicted 2’s request on June through July 2008, 208, when Nonindicted 2 had been in charge of the collection of claims, in order to recover the funds that were disbursed as entertainment expenses, etc. at the request of Nonindicted 7. Accordingly, it cannot be ruled out that credibility such as the transaction account book prepared at the time of transaction for the memory of transaction details before the establishment of the crime is difficult to be recognized, and that there is a possibility of false intervention in the course of the collection list of claims and the detailed contents of entertainment expenses. Even if the source of the use of the funds was indicated as “Council members,” and it is merely a fact that Nonindicted 2, who was not accurately aware of the source of the payment of funds, was recorded as “a party’s horse,” and it cannot be recognized independently from the statement of Nonindicted 2’s statement and its credibility.

(C) Other circumstances that Nonindicted 1 returned KRW 200 million in cash on February 28, 2008 and demanded KRW 300 million to Defendant 2 and Defendant 1 through meetings or correspondences around May 2009, which were in custody, were not acknowledged by evidence. As such, the circumstance that Nonindicted 1 demanded KRW 300 million to Defendant 1 is not acknowledged by evidence, it cannot be viewed as a circumstantial fact that reinforces the credibility of Nonindicted 1’s prosecutorial statement. A thorough examination of the record, there is no further material to support the credibility of Nonindicted 1’s prosecutorial statement.

(3) Ultimately, the judgment of the court below that recognized the facts charged regarding Defendant 1’s primary receipt of political funds as well as secondary and secondary receipt of political funds on the grounds that the entire prosecutor’s statement made by Nonindicted 1 was credibility, is erroneous in violation of logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence. As such, the majority opinion that the judgment of the court below that held Nonindicted 1’s prosecutor’s statement based on Nonindicted 1’s belief is just is due to an analysis of the evidence recorded in the records, and that it is reasonable to determine that the relevant person’s statement or credibility, which appears to be inappropriate, is contrary to the principle of free evaluation of evidence.

E. As to the facts charged regarding Defendant 1-2 and 3’s receipt of political funds, only Nonindicted 1’s prosecutorial statement that offered them as the only direct evidence that seems consistent with this, and there is no objective evidence such as financial data to support this. In determining whether there is credibility excluding reasonable doubt in the statement of a person who provided money in a situation without any objective evidence, such as financial data, there is no need for a new emphasizing that the content of the statement itself is reasonable, objective reasonableness, and consistency before and after the statement, as well as its human being, and whether there is an interest in such statement (see Supreme Court Decision 2012Do1681, Oct. 25, 2012, etc.).

① In view of the fact that Nonindicted Party 1 was exempted from or mitigated from the punishment for his embezzlement and was found to have the company’s management right, there is a possibility that he made a false or exaggerated statement regarding whether he provided political funds to Defendant 1 or his size. ② Nonindicted Party 1’s prosecutorial statement is likely to cause financial difficulties to the extent that it would result in the first failure of the company in February 2008, and Defendant 1, who is a senior relative, was unable to do so, was provided with non-political funds in good faith during the year 2007, with approximately KRW 1/6 of the sales in the year 2006 and KRW 90,000,000,000 won and more than four times the net income, and there is no reasonable doubt about its reality, and ③ Defendant 1 did not provide any evidence to support the political funds by means of offering the opportunity to participate in the business of △○○ Construction Group and △△△ Group, etc., and there is no other specific motive or evidence to support the political funds.

Examining these circumstances in light of the legal principles as seen earlier, it cannot be deemed that Nonindicted 1’s prosecutorial statement cannot be deemed as having credibility to exclude a reasonable doubt, and based on this, this part of the facts charged is not acceptable. The lower court erred by misapprehending the legal doctrine on the recognition of the credibility of the statement of a money provider in a situation where no objective evidence, such as financial data, exists. Furthermore, the Majority Opinion that the lower court’s determination is correct would reverse the legal doctrine on the determination of the probative value of evidence pointed out by the Supreme Court Decision.

F. The lower court, without examining in detail whether Non-Indicted 1’s prosecutorial statement, which is highly likely to involve falsity, is supported by objective evidence or circumstantial facts, and deemed that the entire prosecutorial statement of Non-Indicted 1 was reliable. It is obvious that this is not only in violation of logical and empirical rules, but also in a situation where there is no objective evidence, such as financial data, etc., by misapprehending the legal doctrine on the recognition of the credibility of the statement of a money and valuables provider.

In light of the basic principles of criminal procedures, such as the principle of court-oriented trials and the principle of substantial direct examination, if there is room for false involvement in the investigative agency’s evidence collection process, a thorough examination of the credibility of evidence obtained shall ensure that the distortion of evidence in the investigation process does not interfere with the discovery of substantial truth. According to the Majority’s conclusion, even though there is room for false involvement in the process of collecting evidence in the series of process of evidence prepared by Nonindicted 1’s prosecutor’s protocol of statement by the prosecution, the Supreme Court’s selection of evidence or fact-finding conducted by the fact-finding court should be limited to the adoption of evidence and the Supreme Court’s adoption of

In particular, even in a situation where Nonindicted 1 could make a false or exaggerated statement, it is a serious case in which Nonindicted 1’s prosecutor’s improper scambling to prevent the reversal of Nonindicted 1’s statement. Nevertheless, in light of the change of Nonindicted 1’s statement, it is more necessary to examine whether Nonindicted 1’s prosecutor’s statement conforms to the truth.

In a case where a statement made by the Defendant and a money and valuables provider contains the truth, false, exaggerated, and distortions as a whole, it is the duty of the fact-finding court to find out the truth excluded from the falsity, exaggeration, and distortions among the statements that are mutually contradictory and contradictory, and to understand the substance of the case by combining the truth. Moreover, the Supreme Court’s responsibility is that the fact-finding court is the Supreme Court’s strict examination as to the statement made by the relevant persons favorable to Defendant 1 without neglecting such duty. While neglecting the duty, the lower court did not confirm whether the circumstantial evidence, etc. seem to be supporting the credibility of the prosecutor’s statement made by Nonindicted 1 on the sole ground of the existence of circumstantial evidence, etc., and on the contrary, acknowledged its credibility. Furthermore, the Majority Opinion is inconsistent with the principle of the burden of proof as to the facts charged under the Criminal Procedure Act, without directly examining the credibility of Nonindicted 1’s prosecutor’s prosecutor’s testimony and without any direct examination of the first instance court’s testimony made by the lower court. Moreover, the Majority Opinion did not recognize the credibility of the prosecutor’s testimony as to Nonindicted 1 as well.

The proposition and the principle of trial on evidence should not be excessively applied to vain relief in vain. The evidence that can serve as the basis for the conviction should be closely and closely followed as well as the admissibility and probative value, and thus, it is the basic principle of criminal trials and is also the reason for the existence of the court. The Majority Opinion contradicts the principle of presumption of innocence and contradicts the principle of trial on evidence.

As above, we express our dissent with the Majority Opinion.

Justices Lee In-bok (Presiding Justice)