[1] The handling of "written statement" or "written statement" prepared in the course of investigation of a suspect by an investigative agency and the admissibility of evidence of a suspect's statement made in the absence of notification of the right to refuse to make statements

[2] Where a prosecutor prepared a protocol in the form of a general statement that is not an interrogation protocol, the case holding that if the suspect did not notify the suspect of his right to refuse to make a statement in advance, it cannot be used as evidence

[1] If a document or document recording or recording a suspect's statement is prepared in the course of investigation into an investigative agency, it cannot be seen as different from the suspect interrogation protocol even if it takes the form of "written statement, written statement or written statement". The suspect's right to refuse to make statements guaranteed by the Criminal Procedure Act is based on the right to refuse to make statements against himself/herself in criminal cases guaranteed by the Constitution, which is not forced to make unfavorable to him/her. Thus, if the investigative agency fails to notify the suspect of his/her right to refuse to make statements in advance in interrogation of the suspect, the suspect's statement should be denied even if it is illegally collected evidence

[2] In a case where the prosecutor issued a detention warrant to commit a crime of violating the National Security Act, and examined the organization, organization, activities, etc. of the suspect again after the detention and summoned the suspect, and prepared a protocol in the form of a general protocol of statement that is not an interrogation protocol, the case holding that the contents of the protocol of statement are substantially the same as the protocol of interrogation of suspect, and that if the suspect did not notify the right to refuse to make statements to the suspect in advance, it constitutes illegally collected evidence, and thus it cannot be used as evidence

[1] Article 12(2) of the Constitution of the Republic of Korea; Articles 244-3, 307, 308-2, and 312 of the Criminal Procedure Act / [2] Article 12(2) of the Constitution of the Republic of Korea; Articles 244-3, 307, and 308-2 of the Criminal Procedure Act

[1] Supreme Court Decision 92Do442 delivered on April 14, 1992 (Gong1992, 1647) Supreme Court Decision 92Do682 delivered on June 23, 1992 (Gong1992Ha, 2316) Supreme Court Decision 2007Do6129 Delivered on October 25, 2007

Defendant

Defendant and Prosecutor

Attorney Seo Chang-il et al.

Seoul Central District Court Decision 2007No4048 Decided August 27, 2008

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the Defendant’s ground of appeal

“Purpose” under Article 7(5) of the National Security Act is not necessary to make positive and conclusive perceptions about acts, such as praises, encouraging, etc., and can be satisfied with dolusent perceptions. As such, the contents of the expressive materials are objectively deemed to contain an objection, such as acting in concert with the activities of anti-government organizations, and furthermore, if there is a dolusent perception that such an act may become a dual act, the elements of the establishment are satisfied (see, e.g., Supreme Court Decision 2004Do3212, Aug. 30, 2004). Meanwhile, the selection of evidence and the fact-finding belong to the exclusive authority of the fact-finding court, unless it is contrary to logical

In light of the above legal principles and records, the court below is just in finding that the defendant acquired and possessed pro-enemy materials in accordance with Article 1-1 (a) and (h) of the facts charged in this case for the reasons stated in its decision, and that he participated in the assembly prohibited as provided in paragraph (2) of the facts charged in this case and interfered with traffic, and there is no error of law such as misunderstanding of legal principles as to pro-enemy purposes and misunderstanding

2. As to the Prosecutor’s Grounds of Appeal

If a document or document recording or recording a suspect's statement is prepared in the course of investigation in an investigative agency, it cannot be seen as different from the suspect interrogation protocol even if it takes the form of "written statement, written statement, or written statement" (see Supreme Court Decision 2004Do3588, Sept. 3, 2004, etc.). Meanwhile, the suspect's right to refuse to make statements guaranteed by the Criminal Procedure Act is based on the right to refuse to make self-incrimination, which is not forced to make any unfavorable statement in criminal cases guaranteed by the Constitution. Thus, if the investigative agency fails to notify the suspect of the right to refuse to make statements in advance in interrogation of the suspect, the suspect's statement should be denied even if it is acknowledged as an illegally collected evidence (see Supreme Court Decision 92Do682, Jun. 23, 1992, etc.).

The court below acknowledged the fact that the prosecutor again summoned Nonindicted 1 on August 16, 2006 and received a warrant of detention from the Seoul Central District Court on August 18, 2006. The criminal facts of the warrant of detention include the fact that Nonindicted 1 conspired with his accomplices, and thus violated the National Security Act. The prosecutor examined the organization structure, activities, etc. of Nonindicted 1 while investigating Nonindicted 1, but the prosecutor refused to make statements. The prosecutor prosecuted Nonindicted 1 on September 12, 2006 on the charge of violating the National Security Act, which was detained by Nonindicted 1 on September 19, 2006. The court below acknowledged the fact that the prosecutor prepared the above statement in the form of a general statement, not the form of the suspect interrogation protocol, but the evidence that the prosecutor conspireded Nonindicted 1 to use it as evidence for the defendant's right to refuse to make statements in the form of the prosecutor's evidence and it was not admissible for the prosecutor's remaining evidence. However, the court below found the defendant's remaining evidence of evidence as evidence.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to admissibility 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 Kim Young-ran (Presiding Justice)