The case rejecting the credibility of the contents of the above written statement, on the ground that it is unclear whether the contents of the written statement are accurate or not, merely because the written statement was merely made by allowing the original person to peruse it at the end of the written statement prepared by the prosecutor, who is the original person making the original statement, and the signature and seal was affixed to the original person making the written statement.

The case affirming the credibility of the contents of the above statement, on the ground that it is not clear whether the testimony was properly notified of the contents of the above statement and signed and sealed by the person making the original statement, if it is stated that the person making the original statement was made to allow him to peruse it and sign and seal it at the end of the protocol of statement prepared by the public prosecutor, it is not clear whether it was correct for the person making the original statement to read the contents of the statement at the time of making the above protocol of statement, but the defendant did not agree that it can be admitted as evidence.

Articles 308 and 312 of the Criminal Procedure Act

Defendant

Prosecutor

Park Hong-chul

Attorney Jeon Soo-soo

Daegu District Court Decision 2005Ra1815 Decided May 18, 2005

Of the judgment of the court below, the part concerning the defendant's special larceny teacher shall be reversed.

The defendant is innocent.

The prosecutor's appeal against the violation of the Punishment of Violences, etc. Act (at night and in common injury) in the judgment of the court below is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

The prosecutor, around 16:00 on December 18, 2004, that Co-Defendant 1 did not have the defendant at the time when he instigated Nonindicted 1 to commit the larceny. However, according to the above Nonindicted 1’s statement in the court of original trial and the statement received again from the prosecutor’s office after the above Nonindicted 1’s statement in the prosecutor’s investigation agency and part of Nonindicted 2’s statement, etc., the defendant and the above co-defendant 1 committed assaulting Nonindicted 1 on or around 20:00 on December 17, 2004, again stolen money and valuables to Nonindicted 1 on one occasion after he assaulted Nonindicted 1, and then again stolen money and valuables to Nonindicted 1 on the insane, and on around 16:00 on that day, the court below found the fact that Nonindicted 1 and Nonindicted 2 had caused the larceny of this case. However, the court below acquitted the defendant only on the grounds that he did not have any specific crime date and place, and found the facts of the judgment.

B. Unreasonable sentencing

Considering the circumstances leading to the Defendant’s instant crime, the extremely poor nature of the crime, and the fact that the Defendant did not endeavor to recover damage by the time of the lower judgment, etc., the lower court’s punishment is too uneased and unreasonable.

2. Determination:

A. Ex officio determination

ex officio, the prosecutor, after going through legitimate procedures, applied for permission to amend the Bill of Amendment to the Act to "after December 18, 2004," among the facts charged as to the defendant's special thief in the trial," and the "after December 17, 2004, it was changed to "after December 20, 2004," and the party members permitted it and changed to be tried. Therefore, among the judgment below, the part of the defendant's special thief in the judgment is no longer maintained.

B. Summary of the revised facts charged

In collusion with co-defendant 1 of the court below, the defendant had the above co-defendant 1 of the court below's second instance court's (three addresses omitted)'s payment date of the monthly rent for the defendant's second instance court's (three addresses omitted), and after December 17, 2005, the non-indicted 1 and the non-indicted 2 of the court below's judgment "I am only once I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am. I am I am I am I am we will am.

C. Judgment of mistake of mistake

On December 17, 2004, from the investigation agency to the trial court, the defendant took place with the co-defendant 1 at around 20:00 on December 17, 2004. However, on December 19, 2004, the defendant argued that there was no fact that he instigated the theft committed by Non-indicted 1 and Non-indicted 2 at around 05:00 on December 19, 2004. The issue is whether or not the defendant has instigated Non-indicted 1 and Non-indicted 2 to commit the larceny on December 19, 2004 at his house after he assaulted Non-indicted 1 at around 20:00 and then returned to his house before he returned to his house. As such, the evidence consistent with the fact that Non-indicted 1 and Non-indicted 2's indictment was modified to the defendant, the witness of the court below's each court of first instance, the protocol of examination of the suspect of Non-indicted 1 and Non-indicted 2 at the police prosecutor's office and the suspect examination record (hereinafter).

(1) First, although Non-Indicted 1’s statement after the court below’s second hearing, it is written that Non-Indicted 1, the person making the original statement, had Non-Indicted 1 simply read the contents of the above statement and then sign and seal it. Thus, it is unclear whether it was correct or not the person making the original statement at the time of the preparation of the above statement, and it was not agreed that the defendant can be admitted as evidence, and Non-Indicted 1 was present as a witness at the second hearing of the court, and made a testimony that the contents of the statement are written and signed and sealed by the prosecutor. However, it is not clear whether such testimony was made after being notified of the contents of the above statement and signed and sealed by the prosecutor, and it is also doubtful that the contents of the statement was prepared and sealed by him. Thus, it is also doubtful that it is true that the above statement is authentic.

However, even if admissibility of evidence of the above statement is recognized, it is difficult for Co-Defendant 1 to take the following facts into account: (i) to take a theft from Nonindicted 1 to Nonindicted 2, and then to the lower court’s order that Nonindicted 1 would have taken advantage of Nonindicted 1’s age, and thus, that Nonindicted 2 would not have taken advantage of Nonindicted 1’s daily life on the following day; (ii) to have taken advantage of Nonindicted 1’s new statement that he would have taken advantage of Nonindicted 1’s age; and (iii) to have taken advantage of Nonindicted 1’s order that he would have taken advantage of Nonindicted 2’s daily life on December 17, 204; and (iv) to have taken advantage of Nonindicted 1’s new statement that he would have taken advantage of Nonindicted 1’s age, which he would have taken place in the lower court’s order that he would have taken advantage of Nonindicted 2’s daily life on the following day; and (iii) to have taken advantage of Nonindicted 1’s new statement that he would have taken out his daily life.

(2) Next, as to whether the defendant and the co-defendant 1's statement in the trial of the court of first instance have stolen goods once again in the name of the defendant and the co-defendant 1 immediately after they assaulted himself, the court below made a statement that there is no value of protection from the co-defendant 1. However, the defendant's statement from the defendant that such statement is no longer or well memory, and the defendant's statement in the trial of the court of first instance means that the co-defendant 1's statement in the court of first instance is again stolen after he assaulted Non-indicted 1, but it is true that it means that the co-defendant 1's statement in the trial of the court of first instance is again stolen after he assaulted Non-indicted 1, but it is not sufficient to recognize the charges of this case, since these statements alone are insufficient to acknowledge the charges of this case.

(3) Finally, among the second interrogation protocol prepared by Nonindicted 2’s investigative agency, the statement that “the defendant and the co-defendant committed a theft of money to Nonindicted 1 after taking advantage of Nonindicted 1 several times,” is not only unclear who is the subject of the statement, but also in light of the overall statement content of Nonindicted 2 as seen earlier, it is insufficient to recognize that the defendant instigated Nonindicted 1, etc. to commit the larceny, etc. on the same date and time as the revised facts charged, and there is no evidence to acknowledge any other facts charged, and thus, it also constitutes a case where there is no evidence of criminal fact.

D. Determination on the assertion of unreasonable sentencing

Considering the sentencing conditions stipulated in Article 51 of the Criminal Act, such as the fact that the defendant was the first offender, the fact that the defendant was about two months prior to the pronouncement of the original judgment, the fact that the victim was living in custody while living in prison for about two months prior to the pronouncement of the original judgment, and the victims were not punished by the defendant, the punishment of a fine of KRW 3 million imposed by the court below is deemed appropriate, and it is not recognized that the defendant was sentenced to an unreasonable minor punishment, such as the prosecutor's assertion.

3. Conclusion

Therefore, since the point of the charge of a special larceny teacher whose indictment was changed in the trial of the court below is when there is no proof of facts constituting the crime, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the prosecutor's appeal on the violation of the Punishment of Violences, etc. Act (at night and in injury by joint) is not reasonable, and it is dismissed under Article 364 (4) of the Criminal Procedure

Judges Yellow-ho (Presiding Judge)