[1] Requirements for a statement of the judicial police assistant to a person who is not a suspect to have the admissibility of evidence

[2] The meaning of Article 314 of the Criminal Procedure Act "when a person who needs a statement is unable to appear in the court and make a statement due to death, illness or any other reason"

[3] In a case where a written statement of the victim in the preparation of a judicial police assistant is signed and sealed by the observer on the ground that the victim's signature is impossible by image, whether such written statement is admissible (negative)

[1] In order to use a protocol in which a statement made by a person other than a suspect is written as evidence, first of all, the document must be written by the person who made the statement or signed or sealed as stipulated in Article 313(1) of the Criminal Procedure Act as a formal requirement, and furthermore, unless the party agrees that it may be written as evidence by the statement made by the person who made the statement at a preparatory hearing or during a public trial, the substantial authenticity that the protocol is written as the statement made by the person who made the statement should be recognized.

[2] When the original person who made the original statement is unable to make a statement in the official judgment due to death, illness, or any other cause, the admissibility of evidence is exceptionally acknowledged pursuant to Article 314 of the Criminal Procedure Act only when the preparation of such statement or document was made under particularly reliable circumstances. In particular, when it was made under particularly reliable circumstances, it refers to cases where there is little room for false entry into the contents of the statement or the preparation of the protocol or document, and there is no specific and external circumstance to guarantee the credibility or voluntariness of the contents of the statement.

[3] In a case where the statement of the victim in the preparation of a judicial police assistant was made by means of reading instead of the victim's dynamics who were present on the ground of the victim's impossibility of signing due to the victim's image, and allowing the victim to sign and seal it, this cannot be used as evidence as a document lacking the formal requirements under Article 313 (1) of the Criminal Procedure Act.

[1] Article 313(1) of the Criminal Procedure Act / [2] Article 314 of the Criminal Procedure Act / [3] Article 313(1) of the Criminal Procedure Act

[1] Supreme Court Decision 85Do1843 and 85Do265 decided Oct. 8, 1985 (Gong1985, 1515), Supreme Court Decision 90Do1474 decided Oct. 16, 1990 (Gong1990, 2348), Supreme Court Decision 92Do737 decided Jun. 9, 1992 (Gong1992, 2175), Supreme Court Decision 95Do1761, 95Do83 decided Oct. 13, 1995 (Gong195Ha, 3847) / [2] Supreme Court Decision 94Do2880 decided Feb. 28, 195 (Gong1995, 195; 196Do3847 decided Apr. 16, 1965) / [3] Supreme Court Decision 196Do1965 decided Mar. 16, 1995>

Defendant

Prosecutor

Attorney Jeon Soo-ho

Busan High Court Decision 96No481 delivered on October 17, 1996

The appeal is dismissed.

We examine the grounds of appeal.

In order to use a protocol containing a statement made by a person who is not a suspect as evidence, first of all, as a formal requirement under Article 313(1) of the Criminal Procedure Act, the person who made the statement must write his/her name or affix his/her signature or seal, and further, as long as the party does not agree to be admitted as evidence, the substantive authenticity of the protocol, including the formal authenticity of the protocol, such as seal, signature and seal, etc., through the statement made by the person who made the statement at a preparatory hearing or during a public trial, is recognized (see Supreme Court Decision 92Do737 delivered on June 9, 192, etc.), but if the person who made the statement is unable to make the statement due to death, disease or other reasons, it is admissible as evidence without the statement made by the person who made the statement at a public trial under Article 314 of the same Act, limited to cases where the preparation of the statement or document was made under particularly reliable circumstances, and in particular, there is no possibility that the content of the statement or document is false or false entry, and the external credibility or voluntary nature.

In this case, considering the statement of the victim in the preparation of the judicial police assistant, it can be recognized that the victim's statement is a document that sees the victim's son who was present on the ground that the victim cannot sign by video and has his son affix his son and seal on it, considering the statement at the end of the statement and the statement of his son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son'

In addition, the court below rejected the evidence that corresponds to the facts charged of this case in order that it cannot be trusted, and sentenced not guilty on the ground that there is no evidence to prove the crime, and compared the relevant evidence with the records, the above judgment of the court below is acceptable, and there is no error of law by misunderstanding the facts against the rules of evidence, such as the theory of lawsuit, etc., and there is no reason

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

Justices Lee Yong-hun (Presiding Justice)