The case holding that the testimony of the tape recorder Eul cannot be used as evidence where the defendant consented to the recording recording on the conversations between the defendant, Gap and Eul, and the tape recorder Eul cannot be used as evidence.

The case holding that the recording recording on the conversations between the defendant, Gap and Eul is hearsay evidence on the defendant's statement, and where the defendant consented to the above recording, even if Eul recorded the above conversation and made a statement in the court that the contents of the recording are different, as long as the recording does not contain the person who prepared it, as well as the prosecutor does not submit as evidence the original recording tape, etc. which made the basis of the recording as well as the contents of the recording, it is not admissible as evidence pursuant to Article 313 (1) of the Criminal Procedure Act, since the requirements to recognize the authenticity of the recording are not satisfied, the recording recording cannot be used as evidence because it is not admissible as evidence.

Article 313(1) of the Criminal Procedure Act

Defendant

Prosecutor and Defendant

New Asia Law Firm, Attorneys Kim Jong-Gyeong et al.

Seoul Western District Court Decision 2009No728 Decided November 26, 2009

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the Defendant’s ground of appeal

A. As to the non-appeal

According to the reasoning of the judgment of the court below, the court below asserted that: (a) as long as there were various circumstances acknowledged by the records, ① the defendant made conversations with many people during the period of operation of Nonindicted Party 1, and recorded conversations with the defendant, Nonindicted Party 1 and Nonindicted Party 2, it is difficult to see that the defendant was subject to violence, intimidation, or detained in a strong atmosphere within the hospital; and (b) the defendant received text messages from Nonindicted Party 3 on two occasions at the hospital; (c) although the defendant argued that he was forced by Nonindicted Party 1, etc. within the hospital, it is difficult to believe the defendant's statement as it is, in light of the fact that there was no clear statement, and (d) the defendant received property by taking advantage of the fact that it was difficult for him to view that he was subject to violence or intimidation from Nonindicted Party 1 and Nonindicted Party 2 after taking advantage of the fact that he was forced by Nonindicted Party 1, etc., and that he was able to take advantage of the fact that he was forced to contact with the defendant at the hospital, it.

According to the records, the above recording on the conversation between the defendant, non-indicted 1, and non-indicted 2 submitted in the court of first instance is hearsay evidence on the defendant's statement. In this case where the defendant gave his consent to the above recording, it is erroneous in the court of first instance that the non-indicted 1 recorded the above recording and made a statement that the contents of the recording are different, and the recording does not contain any person who prepared the recording. In addition, the prosecutor did not fully satisfy the requirements to recognize the authenticity of the recording in accordance with Article 313 (1) of the Criminal Procedure Act, such as that the prosecutor did not submit as evidence the original recording on the basis of the above recording recording, which was the basis for the recording recording, as well as the statement on the record of the above recording cannot be admitted as evidence because it cannot be admitted as evidence. However, even if the evidence adopted by the court of first instance recognized as admissible, it is sufficient to recognize the criminal facts of this case, and thus, the court below's judgment of first instance did not affect the conclusion of the judgment below's judgment.

B. As to the forgery of private documents and the uttering of a falsified private document on the report of closure of business

The court below rejected the Defendant’s assertion that Nonindicted 4 had the comprehensive and presumed consent to the preparation of the report on closure of business due to the reason that it cannot be deemed that Nonindicted 4 first allowed the Defendant to make a business registration under his name at the time of the initial permission to make the business registration, and affirmed the judgment of the court of first instance that found the Defendant guilty of forging the Defendant’s private document on the report on closure of business and exercising the falsified investigation document. In light of the relevant legal principles and records, there is no error of law

2. As to the Prosecutor’s Grounds of Appeal

For reasons indicated in its reasoning, the court below affirmed the judgment of the first instance that acquitted the defendant of the fraud on the grounds that it is insufficient to recognize that the defendant conspiredd with Nonindicted 5 to deception Nonindicted 4, and otherwise there is no evidence to acknowledge that the defendant, either directly or in collusion with Nonindicted 5, was deceiving Nonindicted 4. In light of the records, the court below did not err in the rules of evidence against the rules of evidence

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 Cha Han-sung (Presiding Justice)