[1] Whether a foreign competent investigation agency is included in an investigation agency other than a prosecutor under Article 312(2) of the Criminal Procedure Act (affirmative)

[2] Admissibility of evidence of the evidence inspection protocol prepared by a judicial police officer stating the confession statement of the defendant and the status of the existence of crime based thereon

[3] The case affirming the court below's decision that the investigation report prepared by investigators of the United States Criminal Investigation Agency (CID) and the Federal Investigation Agency (FBI) and the statement prepared and submitted by the defendant in the course of investigation by the above investigators cannot be used as evidence as long as the defendant denies its contents

[1] Article 312(2) of the Criminal Procedure Act provides that an interrogation protocol prepared by an investigative agency other than a public prosecutor may be used as evidence only when the defendant who was the suspect or defense counsel admitted the contents thereof. A written statement prepared and submitted by the defendant in the course of investigation by an investigative agency other than a public prosecutor cannot be viewed differently from the interrogation protocol prepared by the pertinent investigative agency regardless of the form. The statement or investigation report prepared and submitted by an investigative agency other than a public prosecutor cannot be viewed as different from the interrogation protocol prepared by the relevant investigation agency. The statement of an investigative agency other than a public prosecutor who made a confession in the course of investigation shall be deemed as if the defendant denies the contents

[2] The evidence protocol prepared by a senior judicial police officer, if the defendant, who was a suspect, made a statement and the contents of the crime that he made in front of an investigative agency other than a public prosecutor, are recorded at the scene of the crime, and the photograph of the process is attached to the photograph taken, such statement and photograph shall not be admissible as long as the defendant denies all the contents of the statement

[3] The case affirming the court below's decision that the investigation report prepared by investigators of the U.S. Criminal Investigation Agency (CID) and the Federal Investigation Agency (FBI) and the written statement prepared and submitted by the defendant in the course of investigation by the above investigators shall be admitted as evidence to the extent that the defendant denies its contents

[1] Article 312 (2) of the Criminal Procedure Act / [2] Article 312 (2) of the Criminal Procedure Act / [3] Article 312 (2) of the Criminal Procedure Act

[1] Supreme Court Decision 79Do493 delivered on May 8, 1979 (Gong1979, 11994) Supreme Court Decision 86Do152 delivered on February 24, 1987 (Gong1987, 588) Supreme Court Decision 92Do42 delivered on April 14, 1992 (Gong1992, 1647) / [2] Supreme Court Decision 84Do378 delivered on May 29, 1984 (Gong1984, 125)

Defendant

Prosecutor

Attorneys Lee Sung-won et al.

Seoul High Court Decision 2003No1753 delivered on October 14, 2003

The appeal is dismissed.

Article 312(2) of the Criminal Procedure Act provides that any protocol of interrogation prepared by an investigative agency other than a public prosecutor may be admitted as evidence only when the defendant who was the suspect or defense counsel admitted the contents thereof. A written statement prepared and submitted by the defendant in the course of investigation by an investigative agency other than a public prosecutor cannot be viewed differently from the protocol of interrogation prepared by the relevant investigative agency, regardless of the form (see Supreme Court Decision 86Do1152, Feb. 24, 1987, etc.). The statement of the investigative agency other than the public prosecutor that the defendant led to confession in the course of investigation, or the investigation report with the same contents, should be viewed equally as the case where the defendant denies the contents of confession during the public trial (see Supreme Court Decision 79Do493, May 8, 1979, etc.). It is reasonable to view that investigation agency other than the public prosecutor as mentioned above includes a foreign competent investigative

In addition, if a document of verification prepared by a judicial police officer states the contents of a crime which a defendant made by himself/herself in front of an investigative agency other than a prosecutor, and the contents of the statement and the contents of the report are attached to a photograph of the process taken by him/her, such statement and photograph shall not be admissible as long as the defendant denies all the contents of the statement and the conditions of the report (see Supreme Court Decision 84Do378 delivered on May 29, 198, etc.).

The court below held that in the verification protocol prepared by a judicial police officer, the defendant's statement or re-written statement prepared by Nonindicted 1, a criminal investigation report prepared by the U.S. military investigative agency (CID), the investigation report prepared by Nonindicted 2, an investigator of the U.S. Federal Investigation Agency (FBI), the prosecutor's office and the police's statements by Nonindicted 2, the witness of the first instance court, and the written statement prepared and submitted by Nonindicted 1, 2, and Nonindicted 3, an investigator of the other U.S. federal investigation agency, cannot be used as evidence as evidence to the extent that the defendant deniess the contents of the investigation. This decision of the court below is just in light of the above legal principles or the records of this case, and there is no error of law in the misapprehension of legal principles as to admissibility of evidence as asserted in the grounds for appeal.

As the prosecutor asserts, the court below did not decide that the protocol stating the defendant's statement on the date of extradition of a criminal, which was presided over by the United States Security Judge, has no admissibility, but merely decided that the whole of the defendant's statement stated in the above protocol is to deny the facts charged in this case on the premise that it is admissible, and in light of the records, such decision of the court below is legitimate, and thus, the prosecutor's ground of appeal that there was an error of law such as incomplete deliberation or misconception of facts against the rules of evidence cannot be accepted.

Furthermore, even if the court below's assumptive judgment, i.e., recognizing the admissibility of the evidence denied as evidence as above, the confession of the defendant is just in light of the records, and there is no sufficient evidence to find the defendant guilty of the facts charged in this case. Thus, it is difficult to see that the court below's principal judgment as mentioned above has affected the conclusion of the judgment.

Therefore, the prosecutor's appeal is dismissed. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)