[1] The probative value of the evidence list stating the defendant's opinion

[2] In a case where only the prosecutor appealeds the entire judgment of the court below which rendered a partial conviction and partial acquittal of concurrent crimes under the former part of Article 37 of the Criminal Code, the scope of reversal on the prosecutor’s appeal concerning the acquittal (=the whole judgment of the court below

[1] Articles 56 and 318(1) of the Criminal Procedure Act / [2] Article 37 of the Criminal Act, Articles 383 and 391 of the Criminal Procedure Act

[1] Supreme Court Decision 98Do2890 Decided December 22, 1998 (Gong1999Sang, 275) Supreme Court Decision 201Do6164 Decided July 28, 201, Supreme Court Decision 2012Do2496 Decided May 10, 2012 / [2] Supreme Court Decision 2004Do5035 Decided October 15, 2004 (Gong2004Ha, 1904) Supreme Court Decision 2005Do40 Decided September 15, 2005

Defendant

Prosecutor

Attorney Park Yoon-hwan et al.

Chuncheon District Court Decision 2011No49 decided September 7, 2011

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court Panel Division.

Before determining the grounds of appeal, we examine it ex officio.

Article 318(1) of the Criminal Procedure Act provides that "documents or articles on which the prosecutor and the defendant agree may be admitted as evidence may be admitted as evidence if it is deemed to be genuine."

In addition, except where there is an obvious clerical error in the protocol, the document recorded in the protocol of trial as the litigation on the court date must be proved only by the protocol, and its probative value is absolute in that it does not allow any counter-proof by any material other than the protocol. Thus, in cases where the defendant's opinion is entered in the evidence list as to whether consent or authenticity is reached with respect to the evidence submitted by the prosecutor, the statement in the evidence list has absolute probative value unless it is a part of the protocol of trial, unless it is a clear clerical error (see, e.g., Supreme Court Decisions 201Do6164, Jul. 28, 201; 2012Do2496, May 10, 2012).

Examining the record in light of the relevant legal provisions and legal principles as seen above, the copy of the prosecutor’s protocol of statement (at least 229 pages of the evidence record) and the police protocol of statement (up to 149 pages of the evidence record) submitted by the prosecutor as evidence can be known to the fact that the defendant consented to be admitted as evidence on the third trial date of the first instance court, but the defendant reversed it on the seventh trial date and consented to be admitted as evidence. Thus, the above evidence is admissible as evidence as long as it is admitted as genuine.

Nevertheless, the court below determined that the above evidence is inadmissible on the ground that it failed to meet the requirements of Article 314 of the Criminal Procedure Act. In so doing, the court below erred by misapprehending the legal principles on the consent of evidence and the probative value of the evidence list, which affected the conclusion of the judgment.

Meanwhile, the prosecutor submitted a written appeal to the effect that he/she is dissatisfied with the entire judgment of the court below, but there is no specific grounds for appeal as to the guilty portion in the written appeal or appellate brief

However, in a case where part of the judgment of the court below which found the defendant guilty and part of the charge of concurrent crimes under the former part of Article 37 of the Criminal Act did not appeal against the judgment of the court below which found the defendant not guilty, but appealed to the whole part of the verdict of the court below without limit to the part not guilty, and where only the prosecutor's appeal against the part not guilty is justified, the part of the judgment of the court below which found the defendant guilty should be reversed together with the part not guilty (see Supreme Court Decision 2005Do40, Sept

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)