[1] Where a person who requires a statement under Article 314 of the Criminal Procedure Act falls under "when he/she is unable to make a statement because he/she was present in the court in the official ruling due to death, illness or other reasons"

[2] The case holding that the statement cannot be deemed to have been made under particularly reliable circumstances

[1] In a case where the court requested the detection of the victim's whereabouts because a writ of summons of witness has not been served on several occasions, but it was impossible to identify the victim's whereabouts, it constitutes "when a person who requires a statement" under Article 314 of the Criminal Procedure Act is unable to appear in the court and make a statement due to death, illness or other reasons."

[2] The case denying the admissibility of the evidence of the prosecutor's office and the police's statement against the victim on the ground that it cannot be deemed that the statement was made under particularly reliable circumstances.

[1] Article 314 of the Criminal Procedure Act / [2] Article 308 of the Criminal Procedure Act, Article 314 of the Criminal Procedure Act

[1] Supreme Court Decision 88Do2405 delivered on February 28, 1989 (Gong1989, 569) Supreme Court Decision 90Do246 delivered on April 10, 1990 (Gong1990, 1102) Supreme Court Decision 90Do2514 delivered on January 15, 199 (Gong191, 794)

Defendant

Defendant and Prosecutor

Attorney Kim Sejong-han

Busan High Court Decision 95No579 delivered on September 7, 1995

All appeals are dismissed.

We examine the grounds of appeal.

Defendant’s ground of appeal

According to the reasoning of the judgment of the court below and the judgment of the court of first instance maintained the court of first instance which found the defendant guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of this case. In light of the records, the court below's aforementioned measures are just and acceptable, and there is no error of law by misunderstanding the facts against the rules of evidence or failing to exhaust all

In addition, considering the various circumstances, which are the conditions for sentencing as shown in the instant case, the sentencing of the lower court, which maintained the first instance court that sentenced ten years to imprisonment with prison labor for the accused, is too unreasonable. The arguments are without merit.

As to the Prosecutor’s Grounds of Appeal

According to the records, the first instance court's adoption of the non-indicted as a witness and summoned three times in the Tong-gu, Busan Metropolitan City, which is the non-indicted, but the non-indicted 2 was returned due to the absence of a resident registration or the unknown director, entrusted the detection of the whereabouts. The court below's dismissal of the non-indicted 1's testimony at the court below's first instance court and the non-indicted 4's office and the non-indicted 4's office were deemed to work as an employee without the resident registration in the above residence, and returned again to the above right bar or dan, but the non-indicted 4's office was not located at low time. After the court below adopted the above non-indicted as a witness again and summoned the above previous residence and place of work, but summoned the above non-indicted 1's previous residence and place of work, the court below's dismissal of the non-indicted 1's testimony at the court below's first instance court and the non-indicted 1's office's rejection of the evidence evidence.

However, in accordance with Article 314 of the Criminal Procedure Act, in order to use the protocol under Article 312 of the same Act or the document under Article 313 of the same Act as evidence, there must be two requirements that the preparation of the statement or document must be made under particularly reliable circumstances, except that the person who needs to make a statement is dead, ill, or unable to make a statement in the official ruling due to other reasons. In this context, the time when the statement or document is made under particularly reliable circumstances does not have any possibility of false involvement in 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 ariness of the statement, and the record reveals that the above non-indicted appeared to have suffered damage to rape of the robbery of this case, but it can not be seen that the defendant was present before and after the defendant's appearance in the police police station's appearance before and after the defendant made the above statement, and thus, it cannot be seen that the above non-indicted's statement was legitimate in light of the circumstances that the defendant did not present statement.

In addition, the court below rejected each of the above statements, even if the admissibility of evidence is acknowledged on a family basis, on the grounds that there is a doubt about its credibility, based on the circumstances as stated in its reasoning. In light of the records, the court below's determination is just and acceptable. Thus, even if it is assumed in the court below that there is an error of law in misunderstanding of legal principles as to the determination of admissibility of evidence, it does not affect the conclusion of the judgment. Ultimately, the arguments are unacceptable as it criticizes the selection

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

Justices Lee Jae-soo (Presiding Justice)