[1] Whether the interrogation protocol of suspect who did not undergo an examination of evidence can be used as evidence for fact-finding

[2] Admissibility of evidence of document copies

[3] Requirements for the crime of evading compulsory execution

[4] The case reversing the judgment below which denied the establishment of the crime of evading compulsory execution

[1] The interrogation protocol of suspect who does not undergo legitimate examination of evidence cannot be used as materials for fact-finding.

[2] Even a copy of a document shall be admissible if the defendant consented to the document as evidence and it is recognized that the document was prepared in a genuine manner.

[3] The crime of evading compulsory execution under Article 327 of the Criminal Code is a danger of undermining creditors by concealing, destroying, falsely transferring property, or bearing false debts for the purpose of evading compulsory execution under the objective condition, which is practically likely to be subject to compulsory execution, provisional seizure, or provisional disposition under the Civil Procedure Act, and is actually likely to be subject to compulsory execution, provisional seizure, or provisional disposition. In other words, it is established that there is a risk of undermining creditors by concealing, destroying, transferring property, or bearing false debts with the intent of evading compulsory execution under the circumstances where creditors appear to institute or institute a lawsuit for preservation. It is not necessarily a crime that causes damage to creditors or an actor takes advantage of certain profits. In the event that an act of bearing false debts, etc.

[4] The case reversing the judgment of the court below on the ground that it is reasonable to deem that there was a risk of undermining the creditor unless there are special circumstances, in the event that the crime of evading compulsory execution was established on the ground that it is not recognized that there was a risk to harm the creditor, and in the event that the defendant bears false debts for the purpose of evading compulsory execution against the judgment below which

[1] Article 292 of the Criminal Procedure Act / [2] Article 318 (1) of the Criminal Procedure Act / [3] Article 327 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995) / [4] Article 327 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995)

[1] Supreme Court Decision 83Do1448 delivered on July 26, 1983 (Gong1983, 1385) / [2] Supreme Court Decision 86Do593 delivered on May 27, 1986 (Gong1986, 841), Supreme Court Decision 86Do893 delivered on July 8, 1986 (Gong1986, 1025), Supreme Court Decision 90Do2601 delivered on May 10, 1991 (Gong191, 1676) / [3] Supreme Court Decision 84Do18 delivered on March 13, 198 (Gong1984, 668) (Gong198), Supreme Court Decision 83Do3439 delivered on May 23, 1989 (Gong19349, Oct. 34, 199)

Defendant 1 and four others

Defendant 2 and two others and the Prosecutor

Attorneys Han Han-sung et al.

Seoul High Court Decision 95No1707 delivered on September 21, 1995

Of the lower judgment, the part on Defendant 3 and the part on Defendant 1’s acquittal are reversed, and that part of the case is remanded to the Seoul High Court. Each of the appeals by Defendants 2 and 4 and the Prosecutor’s appeals by Defendant 5 are dismissed.

1. We examine the grounds of appeal by Defendant 2’s defense counsel (the supplemental appellate brief submitted by Defendant 2 was submitted after the expiration of the period for submitting the appellate brief to the extent of supplement).

In light of the records, the court below's finding the defendant 2 guilty by the first instance court of the court below's first instance and each of the statements at the court below's court below's decision that the defendant 2 violated the rules of evidence, such as the theory of lawsuit, and there is no error of law by misconceptioning the facts against the rules of evidence as to the abuse of the right to institute a public prosecution (in the supplemental appellate brief submitted by the defendant 2, the argument about the abuse of the right to institute a public prosecution goes beyond the scope of supplement, and it cannot be seen that the indictment of this case against the defendant is an abuse of the right

There is no reason to discuss this issue.

2. Defendant 4’s defense counsel’s grounds of appeal

(A) Examining the reasoning of the judgment of the court of first instance cited by the court below in comparison with the records, the court below's decision that found Defendant 4 guilty of preparing false official documents, exercising the same event, and occupational breach of trust is justified, and there is no error of law by failing to exhaust all necessary deliberations or by misunderstanding facts against the rules of evidence.

In addition, even after examining the record, it does not seem that the defendant 4's statement made by the prosecution is not voluntary or that the interview with the defense counsel was made in an unreasonably limited state.

There is no reason to discuss this issue.

(B) In light of the circumstances and amount of money and valuables delivered to Co-Defendant 3, Defendant 4, who received money and valuables from his subordinate employees, etc., it appears that this constitutes a case of receiving or giving a bribe in relation to his duties, and it does not exceed the degree of mutual aid in the society of public officials. Thus, the judgment of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles on acceptance of bribe and grant, such as the theory of lawsuit.

There is no reason for this issue.

3. The grounds of appeal by the defendant 3 and his defense counsel are examined together (the supplemental appellate brief submitted by the defendant 3 is considered to the extent of supplement).

(A) As to the assertion of admissibility of evidence

Defendant 3’s prosecutor’s statement was made by adviser, etc. while meeting with counsel is prohibited, and thus, according to the records, Defendant 3 denies the formation and arbitability of the suspect interrogation protocol prepared by prosecutor (in particular, the second suspect interrogation protocol prepared by the court below), and the court of first instance did not conduct an examination by the method of determining not to adopt it as evidence and notifying the gist thereof, and even the court of first instance did not take such procedure. Thus, even though the above suspect interrogation protocol which did not undergo legitimate examination of evidence cannot be considered as evidence for fact-finding, the court of first instance citing the judgment of the court of first instance admitting the first instance and admitting the second suspect interrogation protocol prepared by the public prosecutor as guilty, it is erroneous that the court below puts the second suspect interrogation protocol prepared by the court of second instance as evidence for finding the defendant 3 as guilty.

However, as examined below, since the remaining evidence alone shows that all the remaining facts of crime except for the part which judged that the error was partially recognized under the following, the above error in the remaining part shall not affect the conclusion of the judgment.

In addition, it does not seem that the statement made by Co-defendant 4 of the lower court or Co-defendant 4 of the lower court does not have any voluntar as the theory of lawsuit. A copy of the document is admissible when the defendant consented to as evidence and it is recognized that the document was prepared in a genuine manner (see, e.g., Supreme Court Decision 90Do2601, May 10, 1991). According to the records, Defendant 3 consented to each copy of the receipt, notice of receipt, application for registration, acquisition tax payment, etc. of the written opinion as evidence, as well as Defendant 3 appears to have been genuinely prepared, so it cannot be said that they were admitted as evidence

In the end, the arguments about admissibility of evidence can not be accepted in itself.

(B) As to the argument about fact-finding

Examining the trial evidence of the court of first instance cited by the court below and the court of first instance (excluding the above second examination protocol of suspect examination) by comparing it with the records, the court below found the defendant guilty of the remaining criminal facts except that the taxpayer defense No. 9, No. 15, and No. 25 of the judgment of first instance among the criminal facts against which the lawsuit is disputed, and that the taxpayer's receipt for custody was forged or exercised in the name of the receiving agency, which is a private document, with regard to the embezzlement of acquisition tax of thought iron. The court below's decision that recognized the distribution ratio of the embezzlement amount as stated in its holding is all acceptable, and there is no error of law by failing to exhaust all necessary deliberations as

However, according to the records and records as to the fabrication of private document and the holding of the above No. 9 No. 15,25 of the above No. 9, in which the investigative agency did not find a notice of receipt or payment certificate, this difference between the sum of the acquisition tax table (which falls under the daily table) and the acquisition tax voluntary declaration payment ledger based on the statement of co-defendant 1 in the court below, and the total amount of the payment stated in the acquisition tax payment ledger on a certain date, and where it differs from the total amount of the tax payment stated in the acquisition tax report ledger on a certain date, it can be seen that it was part of the amount paid in color, considering that the act of forging and exercising the receipt for keeping the amount to be equal to that of the taxpayer was committed in order to embezzled and embezzled. Thus, even if Defendant 3's defense counsel submitted it as evidence at the court below (the trial record No. 6325,326 of the record of the trial record), since it did not have any signature or seal as a result of the above investigation, it cannot be found that the above co-defendant's's's signature and seal were not accepted.

The court below's decision that found the defendant guilty of forging private documents and holding such private events related to Nos. 15 and 25 of the above Attacheds No. 9 with excessive submission of the above evidentiary materials is not sufficient to conduct a trial or contains an error of law in violation of the rules of evidence, and therefore, it is reasonable to discuss this part.

(C) However, Defendant 3’s fabrication of private documents related to Nos. 9-15 and 25 of the above attached Table 9, and the execution of the document are related to the remaining criminal facts and substantive concurrent crimes. Thus, without examining the grounds for appeal on unfair sentencing, the lower court’s judgment on Defendant 3 cannot be maintained in its entirety.

4. We examine the Prosecutor’s ground of appeal as to Defendant 1.

(A) According to the reasoning of the judgment below, the court below presumed that Defendant 1 embezzled KRW 100,320,00 in total while working with the Gu office affiliated with Seocheon-si, and anticipated that it would be subject to compulsory execution because it was discovered by the auditor of the Board of Audit and Inspection, and there was no demand from Seocheon-si to compensate for embezzlement, and that Defendant 1 would be subject to compulsory execution, in collusion with Defendant 1 and 2, the above provisional registration was made for the apartment owned by Defendant 1 in the first instance court 2, and it is difficult to conclude that Defendant 1 bears the above liability of KRW 30,00,000 for the above co-defendant 2 on November 18, 1994, and it is difficult to conclude that Defendant 1 was not guilty of the above provisional registration or the above provisional registration was made for the purpose of proving the risk of borrowing KRW 20,000 on August 30, 1993 with the above charges of borrowing KRW 10,000,000.

(B) The crime of evading compulsory execution under Article 327 of the Criminal Act is a dangerous crime and is likely to be subject to compulsory execution, provisional seizure, or provisional disposition under the Civil Procedure Act in an objective condition that is practically likely to be subject to compulsory execution, provisional seizure, or provisional disposition under the objective condition that an obligee may institute or institute a lawsuit for preservation. In other words, it is established that there is a risk of undermining creditors by concealing, destroying, transferring property, or bearing false debts with the intent to evade compulsory execution under the circumstances where the obligee appears to bring about a lawsuit for preservation. It is not necessarily a crime that causes damage to the obligee or an offender does not constitute a crime that causes any gain (see, e.g., Supreme Court Decisions 84Do18, Mar. 13, 1984; 8Do343, May 23, 1989; 94Do2056, Oct. 14, 1994).

According to the facts and records acknowledged by the court below, since from October 10, 194 to November 16 of the same year, Defendant 1 was discovered that the above embezzlement of registration tax, etc. was conducted from the Board of Audit and Inspection's control over the above Gu office under the House of Busan City from the date of November 14 of the same year and prepared and submitted a confirmation document on the embezzlement. At the time of the completion of the above audit, Defendant 1 was urged to take measures to recover from the above country where the above head of the tax office of the above Gu office did not compensate for embezzlement amount from the name of the non-indicted 1, the superior of the above office before and after the end of the audit, and was ordered to take measures to compensate promptly, while Co-defendant 1 and 5 had already been issued a false request to the above local government for a compensation liability for damages against the above defendant's act on November 16 of the same year. Thus, it appears that the above defendant 2 was not likely to have obtained the above provisional registration to have been carried out under the above provisional registration from the first instance court.

The court below's decision of not guilty of the above facts charged for the reasons stated in its holding without examining any other special circumstances is erroneous in the misapprehension of legal principles as to the crime of evading compulsory execution. Therefore, the argument that points this out is with merit.

5. We examine the Prosecutor’s grounds of appeal as to Defendant 5.

In light of the records, we affirm the decision of the court below which acquitted Defendant 5 on the grounds that there was no supporting evidence as stated in its decision as to the fact that Defendant 5 received money from the non-indicted 3's assistance in the matters belonging to the duties of co-defendant 3 of the court below, and there is no error of law by misconception of facts against the rules of evidence, such as the theory of lawsuit

In addition, since the statement of the prosecutor's statement on the acceptance of the written statement pointing out by the theory of the lawsuit does not constitute a content to reinforce the above facts charged, it is difficult for the court below to hold that the court below failed to fully conduct an examination by failing to take measures to grant admissibility of evidence on the above written statement.

There is no reason to discuss this issue.

6. Therefore, among the judgment below, the part concerning Defendant 3 and the part concerning Defendant 1’s acquittal are reversed, and this part of the case is remanded to the court below. Each of the appeals by Defendants 2 and 4 and the prosecutor’s appeals against Defendant 5 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)