[1] Whether the location of a person who requires a statement on the trial date is included in "when a person is unable to make a statement due to any other reason" under Article 314 (a) of the Criminal Procedure Act (affirmative)

[2] Admissibility of evidence of the protocol in which the defendant did not agree to the admissibility of evidence, or the statement re-professionals or re-professionals are written (negative)

[3] The case holding that the defendant's consent to the protocol in which the re-specialized statement was made to be admissible as evidence is admissible as evidence

[1] The phrase "when a person who needs to make a statement on the preparation or trial date is unable to make a statement because of death, illness, or any other reason" under Article 314 of the Criminal Procedure Act refers to the case where a writ of summons is unable to be served because his/her address is unknown and thus his/her whereabouts cannot be confirmed even though he/she was requested the detection of his/her whereabouts. The phrase "when the statement or the preparation was made under particularly reliable circumstances" under the proviso of Article 314 of the same Act refers to the case where there is little room for false entry in the preparation of the content of the statement or the protocol or the document, and there is no specific and external circumstances that guarantee the credibility or artariness of the content of the statement.

[2] Article 316 of the Criminal Procedure Act provides that the admissibility of evidence shall be exceptionally acknowledged only when a simple form of medical specialist is taken with respect to the hearsay statement, and there is no provision to acknowledge the admissibility of evidence with respect to the protocol in which the re-professional statement or the re-professional statement is recorded. Thus, unless the defendant consents to the admissibility of evidence, it shall not be admitted as evidence in accordance with Article 310-2 of the Criminal Procedure Act.

[3] The case holding that the defendant's consent to the protocol in which the statements re-specialized are recorded as evidence and thus it is admissible as evidence

[1] Article 314 of the Criminal Procedure Act / [2] Articles 310-2 and 316 of the Criminal Procedure Act / [3] Articles 310-2 and 316 of the Criminal Procedure Act

[1] Supreme Court Decision 84Do1697 delivered on February 26, 1985 (Gong1985, 500) Supreme Court Decision 87Do81 delivered on March 24, 1987 (Gong1987, 764) Supreme Court Decision 90Do246 delivered on April 10, 1990 (Gong190, 1102) Supreme Court Decision 2003Do1617 Delivered on June 13, 2003 / [2] Supreme Court Decision 2000Do159 Delivered on March 10, 200 (Gong200, 101) (Gong203Do5255 delivered on December 26, 2003)

Defendant

Defendant

Law Firm Song, Attorney Lee Jae-hwan

Seoul District Court Decision 2001No9738, 2001 early 5948 delivered on December 17, 2002

The appeal is dismissed.

We examine the grounds of appeal.

1. When a person who needs to make a statement at a preparatory hearing or at a public trial date as referred to in Article 314 of the Criminal Procedure Act is unable to make a statement because of death, illness, or any other reason, the term "if the person is unable to make a statement because of his/her address unknown, etc." includes the cases where his/her whereabouts cannot be confirmed even though the writ of summons was requested for the detection of his/her whereabouts, and the case where the statement or preparation under the proviso of Article 314 of the same Act was made under particularly reliable circumstances means the case where there is little room for false entry in the preparation of the content of the statement or the protocol or the document, and there is no specific and external circumstances that guarantee the credibility or decentralization of the content of the statement (see, e.g., Supreme Court Decisions 90Do246, Apr. 10, 199; 203Do1617, Jun. 13, 2003).

Meanwhile, in principle, a protocol containing a full-time statement or a full-time statement is inadmissible in accordance with the provisions of Article 310-2 of the Criminal Procedure Act. However, according to the provisions of Article 316(2) of the Criminal Procedure Act, the full-time statement is admissible only when the person making the original statement is unable to make a statement due to death, illness, residence abroad, or any other reason and its statement is made under particularly reliable circumstances. A protocol containing a full-time statement is admissible in accordance with the provisions of Article 312 or 314 of the Criminal Procedure Act, and it must be exceptionally admissible in accordance with the above conditions under Article 316(2) of the Criminal Procedure Act. Further, the Criminal Procedure Act has an exceptional provision that recognizes its admissibility only in cases where the full-time statement takes the form of a full-time statement in substance under Article 316 of the Criminal Procedure Act, and there is no provision that recognizes its admissibility. Thus, unless the defendant agrees to it as evidence, it is not admissible in accordance with the provisions of Article 310-2 of the Criminal Procedure Act.

According to the reasoning of the judgment below, since the evidence of conviction against the defendant ① the statement of each interrogation protocol of the non-indicted 1 and the non-indicted 2 in the prosecutor's office and the police, ② the testimony of the non-indicted 3 including the specialized contents from the non-indicted 1, ③ the legal testimony of the non-indicted 2's Kim Young-young, ④ the legal testimony of the non-indicted 3's witness Kim Young-young including the specialized contents from the defendant, ⑤ the each statement of the non-indicted 3 in the prosecutor's office and the police's office including the specialized contents from the non-indicted 1, 6, and the statement of the non-indicted 2's interrogation protocol of the non-indicted 3's prosecutor's office and the suspect's interrogation protocol of the non-indicted 2's interrogation statement or the statement of the non-indicted 1's interrogation protocol of the non-indicted 3's admissibility of evidence can be acknowledged as evidence of the non-indicted 1's admissibility of evidence of the above evidence.

Therefore, in the same purport, the court below is just in taking measures against the defendant as evidence of conviction on the premise that these evidence is admissible, and there is no error in the misapprehension of legal principles as to the admissibility of hearsay evidence as alleged.

2. In addition, examining the evidence admitted by the court below in light of the records, we affirm the judgment of the court below which found the defendant guilty of the crime, and there is no error of law by misunderstanding legal principles as to the intent of fraud or by misunderstanding the rules of evidence as alleged.

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

Justices Cho Cho-Un (Presiding Justice)