[1] The intent of denying the admissibility of evidence of a non-Voluntary statement and the burden of proving the voluntariness of the statement (=public prosecutor)

[2] In a case where the defendant made a confession without voluntariness at the police, and then made a confession of the same contents in the prosecutor's office or the court, whether each confession is voluntary (negative)

[1] Article 317 of the Criminal Procedure Act / [2] Article 309 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2010Do3029 Decided November 29, 2012, Supreme Court Decision 2010Do1788 Decided November 29, 2012 / [1] Supreme Court Decision 2004Do517 Decided January 26, 2006 (Gong2006Sang, 359) / [2] Supreme Court Decision 2009Do1603 Decided October 27, 201 (Gong201Ha, 2470)

Defendant

Defendant

Law Firm extent, Attorneys Kim container-soo et al.

Seoul High Court Decision 2010Jo62 decided July 19, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the lower judgment, the lower court found the Defendant guilty of all the charges of this case on the grounds that the Defendant’s entire confessions at the prosecution and partial confessions at the court of first instance are recognized, and the evidence of reinforcement exists.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The purport of denying the admissibility of evidence of a false statement lies in preventing in advance any unlawful and unfair pressure that may result in misjudgment because the statement itself, which was made under a dangerous condition that causes or is likely to cause a false statement, is not consistent with the substantive truth, and thus, infringing on the fundamental human rights of the person who has made a statement, regardless of its authenticity. When there is a dispute over its voluntariness, the prosecutor is not required to prove reasonable and specific facts to suspect the voluntartariness, but to prove the removal of the question about the voluntartariness, and where the prosecutor fails to prove the removal of the question about its voluntariness, the evidence of the statement is denied. Furthermore, if the defendant makes a confession without voluntariness due to harsh conduct, etc. at the police, and thereafter makes a confession with the same contents in the prosecution or court, the confession shall be deemed as a confession without voluntariness (see, e.g., Supreme Court Decision 2012Do15405, Dec. 11, 2014).

B. According to the reasoning of the lower judgment and the evidence duly admitted and examined by the lower court, ① the Defendant was committed with the investigator of the Central Information Department without a warrant on September 9, 197, and was unlawfully detained for 37 days from the date of issuance of the warrant on October 15, 1977; ② the Defendant led to the entire confession of the facts charged in this case from the Central Information Board to the date of the third examination of the suspect at the Central Information Board during which the warrant was issued; ② the Defendant made a confession of the entire facts charged in this case before the date of the third examination of the suspect at the Central Information Board during which the warrant was issued; and ③ the Defendant made a full confession at the time of the examination of the suspect on October 18, 197 at the Central Information Board (Notice 4, October 28, 197); and ③ the Defendant made a confession during three times from November 8, 197 to June 16, 197.

Examining the above facts in light of the legal principles as seen earlier, in full view of the existence of the above illegal confinement, the period of 37 days or more, the prosecution investigation conducted after the illegal confinement was terminated, or the interval between time and time period of the first trial date of the first trial of the court of first instance, etc., the confession made by the Defendant at the prosecution, and partial confession at the first trial of the court of first instance, etc., were made after the Defendant made a confession without voluntariness in the central information department in the state of illegal confinement, and there is sufficient reason to suspect the voluntariness, and even upon examining the record, the prosecutor cannot

C. As above, the prosecutor's office and the court of first instance, which are the premise of the judgment of conviction of the court below, have no admissibility of all or some confessions in the court of first instance, and the court below acknowledged arbitrariness as to each confessions. The court below erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the rules on the exclusion of confessions, thereby affecting the conclusion

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)