A. Whether the suspect's interrogation protocol prepared without notifying the suspect of his/her right to refuse to make statements is admissible (negative)

B. The admissibility of evidence of the court's examination protocol on video tapes recorded on the face of the contents of conversations between the prosecutor and the suspect Gap in the investigation process against the defendant Gap of other cases, which were indicted separately as accomplice Gap

(c) The case holding that the court's protocol of inspection of the video tapes is inadmissible on the ground that the prosecutor has not notified the right to refuse to make statements in advance at the time of recording under the above "B"

D. Whether the participation of the defendant or defense counsel is necessary in the procedure of examination of witness under Article 221-2 of the Criminal Procedure Act (negative)

E. Whether a person who directs organized activities in the hinterland or through an intermediate officer of a criminal organization constitutes “the leader” under Article 4 subparag. 1 of the Punishment of Violences, etc. Act (affirmative), and in such a case, whether two or more “the leader” can act by sharing the role (affirmative)

A. Article 200(2) of the Criminal Procedure Act provides that a prosecutor or senior judicial police officer may refuse to make a statement to a suspect in advance when hearing a suspect's statement that the prosecutor or senior judicial police officer present. As such, the suspect's right to refuse to make a statement is based on the right to refuse to make a statement unfavorable to himself/herself, which is guaranteed by the Constitution, and thus, if the investigative agency fails to notify the suspect of the right to refuse to make a statement in advance in interrogation of the suspect, the suspect's statement should be denied even if the discretion of the statement is recognized as illegally

B. The court’s inspection protocol on video tapes recorded by the prosecutor in charge in the investigation process against Defendant A, who is an accomplice, and the contents of video tapes recorded by the prosecutor in the investigation process against Defendant A, who was indicted as an accomplice, is the same as the interrogation protocol in which the video tapes recorded the suspect’s statement. Thus, admissibility of evidence should be decided according to the interrogation protocol of suspect.

C. The case holding that since there is no evidence to prove that the prosecutor notified in advance that the above Gap's statement was the right to refuse to make a statement to that person at the time of video recording under the above "B", the above video recording content is not admissible as evidence illegally collected, and therefore, the court's protocol of verification on the contents of such video recording cannot be considered as evidence of guilt.

D. In the examination procedure of a witness under Article 221-2 of the Criminal Procedure Act, the participation of the defendant and his defense counsel is not a requisite requirement under Article 221-2 (5) of the same Act, and thus, it cannot be deemed unlawful on the ground that the defendant and defense counsel did not give an

E. The term "the leader" under Article 4 subparagraph 1 of the Punishment of Violences, etc. Act refers to the person who directs and leads the activities of the organization through the head of the head of the relevant criminal organization, and even if he does not directly take charge of the command of the members of the organization in his front, he shall be deemed to fall under the leader in this context a person who directs all the activities of the organization in his front, or directs the organization activities through the intermediary officer who directs or leads the members of the end group, even though he does not directly take charge of the command of the members of the organization in front. In this case, "the leader" shall not necessarily require one person, and two or more

(a)Article 312(a) of the Criminal Procedure Act; Articles 12(2) and 200(2)(b) of the Constitution of the Republic of Korea; Article 311(d) of the same Act; Article 221-2(e) of the Punishment of Violences, etc. Act, Article 4(1) of the same Act;

D. Supreme Court Decision 81Do1944 delivered on September 22, 1981 (Gong1981, 14397), 91Do2527 delivered on December 27, 1991 (Gong1992, 816). Supreme Court Decision 90Do2695 delivered on February 26, 1991 (Gong1123), 91Do15 delivered on September 13, 1991 (Gong191, 2573)

Defendant 1 and one other

Defendants

Attorneys Geum Dong-dong et al.

Busan High Court Decision 91No1468 delivered on February 24, 1992

All appeals are dismissed.

The number of detention days after an appeal shall be included in each original sentence for 70 days.

The grounds of appeal by the defendants 2 and the defendants are examined together.

1. Article 200(2) of the Criminal Procedure Act provides that a prosecutor or senior judicial police officer shall inform a suspect that he/she may refuse to make a statement in advance when he/she hears statements of a suspect present at the meeting. Since such suspect's right to refuse to make a statement is based on the right to refuse to make a self-incrimination that is not forced to make a statement unfavorable to himself/herself in criminal cases guaranteed by the Constitution, in cases where the investigative agency fails to notify the suspect of the right to refuse to make a statement in advance in interrogation of the suspect, such suspect's statement should be denied even if it

Of the evidence admitted by the court of first instance as cited by the court below, the video verification protocol of the case No. 90 high-scale 1410 of Busan District Court (the trial record No. 1284) is an accomplice with respect to the crime of organization of the crime organization of the crime of this case, and the prosecutor in charge is deemed to have recorded the contents and the face of the case with Defendant 2 in the investigation process of the crime of this case, and it appears that the public prosecutor recorded the contents and the face of the case. The video tape recording content of this video tape is the same as the suspect interrogation protocol where the suspect's statement was written. Thus, it is necessary to determine the admissibility of evidence corresponding to the suspect interrogation protocol

However, even after examining the record, there is no evidence to prove that the prosecutor notified the same person that the prosecutor had the right to refuse to make a statement in advance in the above case (90 Gohap1410). Thus, the video recording content is considered to be inadmissible as evidence illegally collected. Therefore, even though the record of verification of such video recording cannot be considered as evidence of guilt, it is reasonable to consider the above verification protocol as evidence of guilt as evidence of guilt in violation of the rules of evidence, and it is reasonable to discuss this point as against the rules of evidence.

* However, as examined below, the remaining evidence except the above verification protocol among the employment evidence of the court below is sufficient to acknowledge the criminal facts of this case by the defendants. As such, the illegality in the employment of the above verification protocol does not eventually affect the judgment of the court below.

2. Examining the remaining evidence of the judgment of the court of first instance, which was admitted by the court below as a result of the records, the court below acknowledged the fact that the defendants organized the "new 2nd century", which is a criminal organization equipped with the command command command system by dividing the defendants into two titles, behavior registers, and acting groups in order to play a bad play in the entertainment rooms of the Jung-gu, Busan Metropolitan City, and Bupyeong-dong, and that the defendants play a role of leading and managing the entire organization as a leader. The court below is justified in the measures taken against the defendants as a crime of organization organization under Article 4 subparagraph 1 of the Punishment of Violences, etc. Act, and there is no violation of the rules of evidence or misapprehension of legal principles, such as the theory of lawsuit.

On January 4, 191, 191, the statement of the court below as of January 4, 1991, which was pointed out by the theory of lawsuit, is clear in the records that the defendant was not admitted as evidence in the court below and the court of first instance, and on January 7, 1991, the statement of the court below as of January 1, 199 was adopted as a witness in the court of first instance, but it was impossible to serve the above fingers as witness, and its location was not confirmed by the request for the detection of materials, and thus it was impossible to hear the statement (the contents of the statement are not inconsistent with the contents of the testimony in the Busan District Court case 91 seconds308, Busan District Court 91, the contents of the statement are not inconsistent with the contents of the testimony in the Busan District Court 91 seconds308). It is legitimate in the court below's decision that recognized the admissibility of evidence in accordance with Article 314 of the Criminal Procedure Act.

In addition, according to the records, the examination of witness was conducted without the presence of the defendants and their defense counsel in Busan District Court 91 seconds308. However, the examination of witness is not conducted by the procedure for preservation of evidence under Article 184 of the Criminal Procedure Act, but by the provisions of Article 221-2 (5) of the above Act. According to Article 221-2 (5) of the above Act, the participation of the defendants and their defense counsel in the procedure for examination of witness under the above Act is not a requisite requirement, and it is not illegal because the defendants and their defense counsel did not give the opportunity to attend (see Supreme Court Decisions 81Do1944 delivered on September 22, 1981 and Supreme Court Decision 91Do2527 delivered on December 27, 191) and the party members cited in the theory of lawsuit (see Supreme Court Decision 91Do237 delivered on February 28, 192) are not an appropriate issue pertaining to the preservation of witness.

Meanwhile, the term "the leader" under Article 4 subparagraph 1 of the Punishment of Violences, etc. Act refers to the person who directs and leads the activities of the organization to the head of the crime group in question, and even if he does not directly take charge of the command of the members of the organization in front, he can be seen as the leader "the person who directs the organization activities through all organization activities in the hinterland, or the intermediary executives leading and leading the members of the horse group," and even if he does not directly take charge of the command of the members of the organization in front, he may not know who actually takes the command and the command from the intermediate executives, and even if he knows two activities, he may not know who actually takes the command and the command from the middle executives, and even if he knows of the two activities, he may not easily reveal the fact in the life of the organization, so it cannot be said that the above "the members of the society in this century" including the co-defendants of the court below cannot be seen as impeding the above fact-finding, and it cannot be said that there is no violation of the rules of evidence of 199 days or more.

3. Therefore, all appeals are dismissed, and 70 days of detention days after the appeal are included in each original sentence of the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Man-man (Presiding Justice)