[1] The admissibility of a verification protocol on a recording tape in which a private person recorded a secret conversation between a person other than the defendant

[2] In a case where a private person conducted verification of the tape in order to verify the state, etc. of the recorded statementer with respect to the recorded tape in which the conversation of a person other than the defendant was recorded, the admissibility of such verification protocol

[1] Article 313(1) of the Criminal Procedure Act / [2] Article 311 of the Criminal Procedure Act

[1] Supreme Court Decision 96Do1669 delivered on October 15, 1996 (Gong1996Ha, 3484) Supreme Court Decision 96Do2417 delivered on March 28, 1997 (Gong1997Ha, 1291) Supreme Court Decision 2004Do6323 Delivered on February 18, 2005

Defendant 1 and one other

Defendants

Law Firm Roice, Attorneys Cho Jong-tae et al.

Suwon District Court Decision 2005No4726 Decided November 29, 2007

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the admissibility of the verification protocol against the recording tape by the court below

The lower court found the Defendants guilty of committing the instant fraud by adopting as evidence the recording records recording the conversation between the victim Nonindicted 1 and the seller Nonindicted 2 (the investigative record, the Defendants’ 25 pages, and the recording tape recording the above conversation as evidence) and the result of verification by the lower court on the recorded tape, etc.

Where the content of verification conducted by a court with respect to a recording tape recorded with a person other than the defendant is merely the same as that of the recording tape attached to the verification protocol, it constitutes evidence evidence. Among them, conversations with a person other than the defendant is still different from the documents in which a statement by a person other than the defendant is recorded in the recording tape other than the defendant under Articles 311 and 312 of the Criminal Procedure Act, so long as the defendant does not agree that the recording tape can be used as evidence, it should be acknowledged that the contents of the statement recorded in the recording tape are recorded as evidence by the person other than the defendant in accordance with Article 313(1) of the Criminal Procedure Act in order to use the recording tape as evidence in the recording tape verification protocol as evidence (see Supreme Court Decisions 96Do169, Oct. 15, 196; 9Do1697, Mar. 28, 1997; 200Do16176, Feb. 17, 1997).

According to the reasoning of the judgment below and the records, the recorded tape which was verified by the court of original judgment is the recording of the telephone call with Nonindicted Party 1 on or around February 1, 2004, and which was presented by Nonindicted Party 1 as witness at the court of first instance. The Defendants also agreed that the recording tape (the investigative record 25 pages) can be admitted as evidence. The facts that Nonindicted Party 2, the other party to the telephone call, appeared as witness at the court of first instance and the court of original instance on or around February 1, 2004, and that the real estate was sold at KRW 20 million, not at KRW 19 million, and it was argued that it was true that the recorded tape was sold to Nonindicted Party 1, and that it was hard to find that the recorded tape was delivered with other real estate sales records at that time, and that it was hard to see that the recorded tape was delivered with other real estate sales records at that time, and that the recorded tape was sold in conformity with the legal principles as seen above.

2. As to other grounds of appeal (in violation of the rules of evidence collection)

The court below found the Defendants guilty of the instant fraud by integrating the adopted evidences, including the record recording and the result of verification of the recording tape by the court of original judgment. In light of the records, the court below did not err by violating the rules of evidence (the record of Non-Indicted 1 in the second trial record of the court of first instance is used as evidence of indirect facts related to the instant charges, and it cannot be deemed that the court below used it as evidence of indirect facts related to the instant charges).

3. Conclusion

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

Justices Kim Nung-hwan (Presiding Justice)