[edit] Supreme Court Full Bench Decision 99Do1108 delivered on June 15, 2000 [Violation of Attorney-at-law Act]

【Main Issues】

Whether the admission of a deposition as evidence can be acknowledged when a prosecutor summons the witness again and subjects him to a thorough investigation, which leads to the reversal of the statement that was favorable to the defendant made at a preparatory hearing or during the public trial (negative with qualification)

【Summary of Decision】

[Majority Opinion] When a prosecutor summons the witness again, and subjects him to a thorough investigation, which leads to the reversal of a statement that was favorable to the defendant, made at a preparatory hearing or during the public trial, the action is against the current adversarial criminal procedure law doctrine focusing on the trial and also the principle of directness. It is also against the fundamental right guaranteed by Article 27 of the Constitution. In other words, it is in violation of the right to a trial, in which all the evidence is investigated and testified and the defendant may argue and defend himself in the presence of a judge. Therefore, unless the defendant concedes that such deposition can be admitted as evidence, it is not an admissible evidence. Although it is another argument that when the previous witness (the original witness) appears in court in order to testify and admits to the fact that the record is authentic, and the defendant is allowed the opportunity to cross-examine, the testimony itself may be used as evidence of guilt, the conclusion that the prior deposition cannot be admissible as evidence is not changed.

[Supplementary Opinion] (1) Paragraph 1 of Article 12 of the Constitution states the right not to be punished without due process and Paragraphs 1 and 3 of Article 27 state, as a written provision, the right to a fair and speedy open trial according to the law in the presence of a judge. In order to further such fundamental rights, the Criminal Procedure Act stipulates the reciprocal examination system, which includes the cross examination right of the defendant in Article 161-2 and also stipulates in Article 310-2 that the admissibility of evidence of the testimony is not allowable if the testimony is not made before a judge and if the defendant was not given the opportunity to cross-examine the witness. A criminal trial guarantees the principle of directness and dictates that all evidence must be testified and heard before a judge. The right to a fair trial also guarantees the defendant's right to cross-examine an unfavorable witness. Therefore, Articles 312 and 313, which are stipulated in Article 310-2 as exceptions to the basic principles explained above, must be strictly analyzed and applied. (2) In the Criminal Procedure Act, the admissibility of evidence is regulated in ① Article 312, which concerns statements of a suspect or of any other person prepared by a prosecutor before an indictment; ② the later part of Article 311, which concerns records of examinations of witnesses that were prepared not at the court of law but pursuant to the procedure for the preservation of evidence which a judge ordered before the first public trial; and ③ the first part of Article 311, which concerns records of examination of witnesses prepared by the court of law after the first public trial. When a deposition is made after a prosecutor summons a witness again and subjects him to thorough investigation, which leads to the reversal of the prior statement that was favorable to the defendant testified at a preparatory hearing or during the public trial, it is prepared after the meaning of a suspect has become useless since the suspect has become a defendant through indictment. Therefore, the deposition that is prepared based on the testimony of "any other person" is not included in the meaning of Article 312 of the Criminal Procedure Act. Article 313 of the same Act is also a provision for documents excluding such depositions provided in Articles 311 and 312 of the same Act, and thus cannot be interpreted to determine such deposition mentioned above. Therefore, such deposition does not come within the purview of the records described in Article 312 or statements described in Article 313 of the same Act. (3) Records or documents determined in Articles 312 and 313 of the Criminal Procedure Act are prepared or collected evidence of the investigative authorities during the criminal investigation. It seems that the real purpose of preparing such deposition without charging one and investigating perjury, is to impeach the witness' previous testimony through re-examination because it was an act on the prosecutor's own discretion rather than a proper procedure for the examination of a witness not in a court, but in the prosecutor's own office, thus, such action by the prosecutor can be appropriately interpreted as a continuing re-examination procedural act by an agent that maintains a public prosecution, rather than an investigation by an investigative authority. As a result, it could be said that the deposition prepared cannot fit into the records or documents described in Articles 312 and 313 of the Criminal Procedure Act. (4) In the case where the reference witness is summoned as a witness and testified to his own experience in front of a judge and has the possibility to testify again, the court which has accepted the suit, if the court becomes suspicious of the testimony, by its authority or by the request of the prosecutor, may again summon the witness and request to hear the testimony and decide if it is sufficient enough. If the prosecutor, despite the above fact, prepares a previous witness' deposition and submits it as evidence, it will surely be a retrogressive procedure to the principle of directness because such evidence is hearsay evidence that is intentionally created since direct hearing of the court was possible. Therefore, admissibility of evidence cannot be acknowledged by interpreting Articles 312 and 313.

[Dissenting Opinion] If a deposition does not involve any illegality during the preparation that was made after the previous testimony, of which the genuine completion is confirmed by the original person making the statement and the right to cross-examination is guaranteed according to Paragraph 1 of Article 312 of the Criminal Procedure Act, the admissibility of the evidence should be acknowledged, but the value of the evidence should be a decision of the bench. In the present case, the contents of the first deposition of the witness who previously testified and the contents of the later testimony, the reason why the prosecutor took the procedure again, what procedure the prosecutor chose, and the content of the deposition must be investigated to decide whether any illegal grounds exist that can deny the admissibility of the evidence. Therefore, the majority opinion that denies the admissibility of evidence of the deposition only because the witness previously testified cannot be accepted.

【Reference Provisions】 Articles 312, 313 and 318 of the Criminal Procedure Act

Article 312 of the Criminal Procedure Act (Deposition Prepared by Public Prosecutor or Judicial Police Officer) (1) A deposition which contains a statement of a suspect or of any other person, prepared by a public prosecutor, or a deposition containing the result of inspection of evidence, prepared by a public prosecutor or judicial police officer, may be introduced into evidence, if the genuineness thereof is established by the person making the original statement at a preparatory hearing or during the public trial; provided, that a deposition containing the statement of the defendant who has been a suspect may be introduced into evidence only where the statement was made under such circumstances that it is undoubtfully believed to be true, regardless of the statement made at a preparatory hearing or during public trial by the defendant.

(2) A deposition containing interrogation of a suspect prepared by investigation authorities other than a public prosecutor may be used as evidence, only in case where the defendant who has been a suspect, or the defense counsel at a preparatory hearing or during public trial verifies the contents of the deposition.

Article 313 of the Criminal Procedure Act (Statement, etc.) (1) A document prepared by a defendant or any other person, except the depositions mentioned in the preceding two Articles, or a written statement, if there being the handwriting, a signature or a seal of maker or stater, may be introduced into evidence, if it is proven to be genuine by the maker thereof by his testimony or stater at a preparatory hearing or during a public trial; provided, that the document containing the statement of the defendant may be introduced into evidence only when proven genuine by the testimony of the defendant at a preparatory hearing or during a public trial and when the statement is made under circumstances which would lend it special credibility, regardless of the statement made by the defendant at a preparatory hearing or during public trial.

(2) The provision of paragraph (1) shall also apply to documents containing the development and results of expert opinion.

Article 318 of the Criminal Procedure Act (Agreement of Parties and Probative Value of Evidence) (1) Documents or articles on which the public prosecutor and the defendant agree shall be admitted as evidence when deemed to be genuine.

(2) In case where trial may be held without the presence of the defendant and the defendant does not appear, he shall be deemed to have given the consent mentioned in the preceding paragraph; provided, that the former part shall not apply where a proxy or defense counsel appears for the defendant.

【Reference Cases】 Supreme Court Decision 4288HyungSang128 delivered on July 15, 1955 (Jip 3-1, 33), Supreme Court Decision 67Do613 delivered on July 4, 1967 (Jip 15-2, 27), Supreme Court Decision 68Do1481 delivered on July 25, 1969 (Jip 17-2, 114), Supreme Court Decision 83Do1632 delivered on August 23, 1983 (Gong1983, 1462)(changed), Supreme Court Decision 84Do1376 delivered on November 27, 1984 (Gong1985, 101)(changed), Supreme Court Decision 91Do2337 delivered on February 28, 1992 (Gong1992, 1215), Supreme Court Decision 92Do682 delivered on June 26, 1992 (Gong1992, 2316), Supreme Court Decision 92Do1555 delivered on August 18, 1992 (Gong1992, 2808)(changed), Supreme Court Decision 92Do2171 delivered on April 27, 1993 (Gong1993Sang, 1620)(changed)

【Defendant】 Defendant

【Appellant】 Defendant

【Defense Counsel】 Chang Shi-il

【Court of First Instance】 Cheongju District Court Judgment 98Godan1191 delivered on November 10, 1998

【Court of Second Instance】 Cheongju District Court Judgment 98No1102 delivered on February 23, 1999

【Disposition】 The appeal shall be dismissed.

【Reasoning】 1. On the first ground for appeal

According to the record and decision of the court below, the deposition made by Kim Jong-in on September 9, 1998 (hereinafter 'deposition of this case') is prepared by the prosecutor after Kim Jong-in was summoned by the prosecutor and appeared again at the prosecutor's office after Kim Jong-in had made a partially supporting testimony as a witness for the defendant through the main examination by the prosecutor and cross examination by the defendant side at the fourth public trial of the court below on August 25, 1998. The prosecutor did not book Kim Jong-in separately as a suspect on the charge of perjury and examine him, but instead simply reinterrogated him and reversed his favorable testimony for the defendant that he had made at the trial. The defendant did not agree that the testimony could be admitted as evidence when the prosecutor submitted the deposition of this case as evidence of guilt. At the eighth public trial of the court below on December 27, 1998, Kim Jong-in appeared as a witness because of a request by the prosecutor and confirmed that his deposition was genuine. The defendant counsel also had an opportunity to cross-examine the witness at the trial. Therefore, the court below has recognized the admissibility of the deposition as an evidence of guilt and the court below had quoted this fact.

However, when a prosecutor summons the witness again, and subjects him to a thorough investigation, which leads to the reversal of a statement that was favorable to the defendant, made at a preparatory hearing, or during the public trial, the action is against the current adversarial criminal procedure law doctrine focusing on the trial and also the principle of directness. It is also against the fundamental right guaranteed by Article 27 of the Constitution. In other words, it is in violation of the right to a trial, in which all the evidence is investigated and testified and the defendant may argue and defend himself, in the presence of a judge. Therefore, unless the defendant concedes that such deposition can be admitted as evidence, it is not an admissible evidence. Although it is another argument that when the previous witness (the original witness) appears in court in order to testify and admits to the fact that the record is authentic, and the defendant is allowed the opportunity to cross-examine, the testimony itself may be used as evidence of guilt, the conclusion that the prior deposition cannot be admissible as evidence is not changed. Contrary to this, when the previous witness who made the original statement is testifying again and the defendant is offered an opportunity to cross examine, this Court has decided that such deposition could be used as evidence of guilt in Supreme Court Decision 92Do1555 delivered on August 18, 1992 and in Supreme Court Decision 83Do1632 delivered on August 23, 1983, Supreme Court Decision 84Do1376 delivered on November 27, 1984, and Supreme Court Decision 92Do2171 delivered on April 27, 1993, this Court proceeded on the premise that such deposition is admissible as evidence. These decisions should be amended to the degree that they contradict the above opinion.

Therefore, regarding the decision of the court below acknowledging the admissibility of evidence of the deposition in this case and using such testimony as evidence of guilt was illegal because it had misunderstood the legal principles concerning the admissibility of evidence with respect to reversing testimony. On the other hand, as mentioned later in this opinion, although such testimony is excluded, there are other sufficient evidence to find the defendant guilty and thus, the illegality of the court below's decision did not affect the conclusion of the judgment. Therefore, the first ground for appeal is groundless.

2. On the second ground for appeal

Regarding the request for a warrant and interrogation of the suspect, Article 201-2 of the Criminal Procedure Act separately regulates the request of a warrant for a suspect arrested (Paragraphs 1 and 2) and the request of a warrant for other suspects (Paragraph 3). Accordingly, the request and granting of a warrant for a non-arrested suspect is different from an arrested suspect because a prosecutor or a judicial police officer does not have to notify the defendant of the right to request an interrogation.

According to the record, it is evident that the defendant was not arrested when the warrant was requested, and thus the investigative authority is not responsible for not notifying the defendant of the right to request an interrogation and there is also no evidence concerning an unreasonable prolonged confinement of the defendant. Therefore, the ground for appeal based on such argument is also groundless.

3. On the third and fourth grounds for appeal

Even if the testimony challenged in this case is excluded, other evidences quoted in the court records below are sufficient to support the guilty decision by the lower courts. Therefore, we found no reason to accept the argument for appeal by the defendant in that the court below did not make a wrongful decision that may influence the result of the case such as misunderstanding of facts or lack of thorough investigation due to the violations of the rules of evidence.

4. Therefore, the appeal shall be dismissed as per Disposition. Except the dissenting opinion of Justices Chi Chang-kwon, Lee Im-soo, Suh sung, Cho Moo-jeh, and Yoo Ji-dam, the decision is delivered with the assent of all other Justices who reviewed the appeal and Justice Kim Hyoung-sun has a supplementary opinion to the majority opinion.

5. The supplementary opinion to the majority opinion by Justice Kim Hyoung- sun is as follows:

A. Under the heading of "Hearsay Evidence and Limitation of Probative Value of Evidence" in Article 310-2 of the Criminal Procedure Act (hereinafter 'Act'), it is stated that "Except as provided for in Articles 311 through 316, any document which contains a statement made at a preparatory hearing or during public trial, or any statement the import of which is another person's statement made outside preparatory hearing or at the time other than the public trial date, shall not be admitted as evidence of guilt." The deposition in this case documented and prepared by the prosecutor was based on the statement during an interrogation and it was submitted to the court. Thus the testimony is included in the meaning of the above Article's provision that states 'any document which contains a statement made at a preparatory hearing or during public trial.' Therefore, unless it is included in the exceptions stipulated in Article 311 through 316, the admissibility of evidence cannot be acknowledged. However, it is certain that the testimony in this case is not included in Article 311 that concerns records of courts and judges, Article 314 that concerns exceptions by necessity, Article 315 that concerns documents with proper admissibility of evidence, or Article 316 that concerns the testimony of professionals. Furthermore, the testimony in this case is also not included in Articles 312 and 313 for the following reasons, and thus the testimony is not admissible evidence unless the defendant concedes to the fact that it could be admitted as evidence according to Article 318.

(1) Paragraph 1 of Article 12 of the Constitution states the right not to be punished without due process and Paragraphs 1 and 3 of Article 27 state, as a written provision, the right to a fair and speedy open trial, according to the law, in the presence of a judge. In order to further such fundamental rights, the Criminal Procedure Act stipulates the reciprocal examination system, which includes the cross examination right of the defendant in Article 161-2 and also stipulates in Article 310-2 that the admissibility of evidence of the testimony is not allowable if the testimony is not made before a judge and if the defendant was not given the opportunity to cross-examine the witness. A criminal trial guarantees the principle of directness and dictates that all evidence must be testified and heard before a judge. The right to a fair trial also guarantees the defendant's right to cross-examine an unfavorable witness. Therefore, Articles 312 and 313, which are stipulated in Article 310-2 as exceptions to the basic principles explained above, must be strictly analyzed and applied.

(2) Meanwhile, the Act concerns the witness examination in court in Part 1, Chapter 12 of the Act, investigation of the prosecutor and judicial police officer in Part 2, Chapter 1 of the Act, and evidence in Part 2, Chapter 3, Section 2 of the Act. A record that was prepared after the indictment during the procedure for examination of evidence at the court is included in the first part of Article 311 of the Act which states 'a record that stated a testimony other than the defendant,' and a record that was prepared during the procedure for the examination of evidence by the judge before the court below outside the court according to Articles 184 and Article 221-2 of the Act is included in the later part of Article 311. A record that was prepared during the prosecutors' examination of suspects according to Article 200 of the Act is included in Article 312-1 of the Act which states 'record stating the suspect's testimony,' and a record that was prepared by another person that is not a suspect according to Article 221 of the Act is included in Paragraph 1 of Article 312 which states that 'a record stating a testimony of a non-suspect.' If all the provisions are integrated, in the Criminal Procedure Act, the admissibility of evidence is regulated in ① Article 312, which concerns statements of a suspect or of any other person prepared by a prosecutor before an indictment; ② the later part of Article 311, which concerns records of examinations of witnesses that were prepared not at a court of the law but pursuant to the procedure for the preservation of evidence which a judge ordered before the first public trial; and ③ the first part of Article 311, which concerns records of examination of witnesses prepared by the court of the law after the first public trial. Accordingly, it is stated in Article 311 of the Act that 'a defendant or another person other than a defendant,' and it is stated in Article 312 of the Act that 'suspect or a non suspect' or 'a suspect who became a defendant' and 'a defendant who was a suspect' thus distinguishing the use of the term 'defendant' and 'suspect.' The suspect and the defendant are distinguished by Article 48 of the Act, which is the provision concerning record preparation process and also in the previously mentioned Article 184 of the Act. The term, suspect, is used in provison concerning the review of the legality of confinements while the term, defendant, is used in bail proceeding, which indicates that our law clearly uses each term with prudence and with consistency.

Accordingly, the deposition in this case is prepared after the meaning of a suspect has become useless since the suspect has become a defendant through indictment. Therefore, the deposition that is prepared based on the testimony of "any other person" is not included in the meaning of Article 312 of the Criminal Procedure Act. Article 313 of the same Act is also a provision for documents excluding such depositions provided in Articles 311 and 312 of the same Act, and thus cannot be interpreted to determine such deposition mentioned above. Therefore, such deposition does not come within the purview of the records described in Article 312 or statements described in Article 313 of the same Act.

(3) Also, when an indictment is proposed, the prosecutor performs not only the investigative duties as an investigative agent but also prosecuting duties as a public prosecutor, that is to say, the prosecutor is simultaneously carrying out the trial procedure as a concerned party. Thus, the investigative role and the prosecuting role must be strictly distinguished. Also, the records or documents determined in Articles 312 and 313 of the Criminal Procedure Act are prepared or collected evidence of the investigative authority during the criminal investigation.

However, according to the facts of this case, when the prosecutor prepared the deposition against Kim Jong-in, it seems that the real purpose of preparing such deposition without charging one and investigating perjury, is to impeach the witness' previous testimony through re-examination because it was an act on the prosecutor's own discretion rather than a proper procedure for the examination of a witness not in a court, but in the prosecutor's own office, thus, such action by the prosecutor can be appropriately interpreted as a continuing re-examination procedural act by an agent that maintains a public prosecution, rather than an investigation by an investigative authority. As a result, it could be said that the deposition prepared cannot fit into the records or documents described in Articles 312 and 313 of the Criminal Procedure Act.

Furthermore, even if the substance of the deposition in this case is looked upon as a testimony of examination of a suspect against Kim Jong-in on separate charges of perjury, according to the records, it is acknowledged that the right to refuse to make a statement which is stated in Paragraph 2 of Article 200 of the Act, was not told to the witness when the deposition in this case was prepared. Therefore, the admissibility of the deposition as evidence in this case is denied on this point. (See Supreme Court Decision 92Do682 delivered on June 26, 1992.)

(4) Additionally, if the related provisions of the Act are gathered together with the previously mentioned principle of directness, Articles 312 and 313 of the Act purport that when taking into consideration that the court of the law should actually deliberate on the case and could not directly listen to the original person that made the statement through examination of the facts that he had experienced when hearsay evidence such as depositions and statements were prepared, the admissibility of evidence can only be acknowledged in an exceptional situation. Just as in this case where the reference witness is summoned as a witness and testified to his own experience in front of a judge and has the possibility to testify again, the court which has accepted the suit, if the court becomes suspicious of the testimony, by its authority or by the request of the prosecutor, may again summon the witness and request to hear the testimony again and decide if it is sufficient enough. If the prosecutor, despite the above fact, prepares a previous witness' deposition and submits evidence, it will surely be a retrogressive procedure to the principle of directness because such evidence is hearsay evidence that is intentionally created since direct hearing of the court was possible. Therefore, admissibility of evidence cannot be acknowledged by interpreting Articles 312 and 313. If the opposite viewpoint is assumed, not only the legislative purpose of the fundamental rule that was newly established by Article 310-2 of Law No. 705 of September 1, 1961 will be disregarded, but also the principle of directness and its exceptions will be reversed.

B. Even if this case is viewed from the defendant's rights as the party to the criminal procedure, the admissibility of the testimony evidence in this case should also be denied.

Paragraphs 1 through 3 of Article 27 of the Constitution state the fundamental rights of the people, which include the right to a trial where all evidential materials can be examined and testified to before a judge. Additionally a defendant should be given a meaningful opportunity to refute such evidential materials. After the indictment is initiated, the defendant will be in the position of a party rather than a suspect subject to investigation. Accordingly, the Act will provide the defendant with a right to appear at a trial (Article 276), a right to apply for evidence (Article 294), a right to be involved in the examination of evidence (Articles 163, 121, 145 and176), a right to cross-examine witness (Article 161-2), a right to present an opinion for examination of evidence (Article 293), and a right to object to the examination of evidence (Article 296). Regarding this point, from the early days, the Supreme Court has held that even if a deposition is testified before a judge and is proven genuine, the testimony is not admissible as evidence if the defendant is not given an opportunity to defend himself or herself concerning the testimony unless there is an extraordinary circumstance. The defendant should also be notified of the testimony. (See Supreme Court Decision 4288HyungSang128 delivered on July 15, 1955, Supreme Court Decision 67Do613 delivered on July 4, 1967, Supreme Court Decision 68Do1481 delivered on July 25, 1969, Supreme Court Decision 91Do2337 delivered on February 28, 1992 etc.)

However, despite the fact that the deposition in this case was prepared after the indictment, which is after the defendant had became a party, there was no guaranteed right to cross examination of the defendant and furthermore, it is certain that there was no participation of the defendant or counsel for the defendant. Therefore, when compared to the testimony of the witness examination by this court, there is no way to acknowledge the admissibility of evidence.

C. Of course evidence cannot be considered illegal just because it has been collected after the indictment, and a prosecutor, as a public agency, cannot wholly be blamed for continuously collecting evidence and investigating in order to sustain the indictment after the indictment has been instituted. However, the fact that the investigation was possible does not just guarantee that depositions or statements collected during such investigation become admissible evidence, but the admissibility of evidence is only decided in accordance with the limitation and conditions legally imposed under the rules of evidence in terms of guaranteeing human rights and the adversarial system, the public trial doctrine, and the principle of directness. This can be easily acknowledged by looking at the fact that a testimony of a suspect prepared legally at the beginning of the investigation by a judicial police officer cannot be admissible evidence unless the defendant or the counsel for the defendant acknowledges the contents.

Accordingly, the possibility or necessity of the investigation after the indictment, and the admissibility of the testimony as evidence in this case are separate issues because the fact that the admissibility of the testimony is denied does not necessarily mean that the investigation after the indictment became immediately illegal. Earlier cases that ruled that testimony such as of this case is admissible as evidence seemed to fail to notice such point.

D. There might be an objection that denying the admissibility of evidence of the deposition of this case is unjustifiable from the perspective of the essential necessity of finding the truth.

However, rather the directness principle or the hearsay principle compels the judge to form a precise conviction and gives the opportunity to the defendant directly to state the opinion regarding the evidence thus contributing to the essential discovery of the truth and a fair trial. The theory that testimony that is carried out unilaterally in the prosecutor's office without an oath and the warning about the punishment for perjury and the appearance of the defendant, is more effective in the search for the truth than the testimony that is carried out in the public court room under oath with the warning about the punishment for perjury and the presence of the defendant, cannot be easily understood. Also, if the witness cannot make sufficient testimony in front of a defendant or an adjudicator, Article 297 of the Act allows the witness to testify outside the courtroom. In addition, even the Supreme Court precedents that acknowledged the admissibility of evidence of such testimony are consistent with the opinion that the genuineness of the preparation procedure for such deposition is weak, and thus the objection based on the actual discovery of the truth is not persuasive.

6. The dissenting opinion of Justices Chi Chang-kwon, Lee Im-soo, Suh Sung, Cho Moo-jeh and Yoo Ji-dam is as follows:

A. Our Criminal Procedure Act acts as the tools of the rules of evidence to achieve the goals of basic human rights and the discovery of the essential truth. Regarding evidence as proof of guilt in a charge, the Act stipulates that the probative power of the scope of inadmissible evidence along with the admissible evidence is decided by a free evaluation of evidence.

Furthermore, it is without doubt that the application of the Criminal Evidence Law is arranged to provide the right to a trial under Article 27 of the Constitution, the adversarial system, the public trial doctrine, and the principle of directness.

Therefore, the files submitted by prosecutor as evidence of proof of guilt should be concluded inadmissible when it conforms to the regulation regarding the exclusion of admissibility, or if not, when there is an obvious violation of the criminal procedure's guiding ideology. The admissibility of evidence will be recognized when there is no base for the uncertainty of the admissibility, but the decision regarding the value of evidence should be left to the court's free evaluation of evidence in order to maintain the adversarial system, the public trial doctrine, and the principle of directness.

B. Accepting the argument of the majority results in squarely denying the admissibility of a deposition in a situation where the prosecutor has received the deposition from the witness who has already appeared as a witness on the trial date without considering the reason or procedure for receiving the new deposition, the contents of the testimony, and the deposition, and what types of litigation procedure the prosecutor took in order to acquire the deposition of evidence.

However, there is a need to examine whether this manipulation has any legal validity, serves a positive or a negative function in the protection of human rights of a defendant and a witness and the discovery of the essential truth, and maintains the adversarial system, principle of directness, and the public trial doctrine.

C. The majority and the supplementary opinion, using the Act which stipulated the exclusion of admissibility, Criminal Procedure Act (hereinafter referred to as the 'Act') Article 310-2's exceptional situations stipulated in Article 312, use the phrase 'the testimony of one who is not a suspect' as a base, argues that the deposition in that case only refers to the deposition prepared by the prosecutor during the period before the defendant faced prosecution as a suspect.

However, the phrase, 'the testimony of one who is not a suspect,' should be seen as pointing to a person other than the suspect who became a defendant, rather than focusing on the point in time when the suspect became a defendant.

When limiting the focus to the provisions relating to evidence, the use of the words, defendant and suspect, is not sharply distinguished, as argued by the majority opinion, but in reality they are used together without any distinct timely notion. For example, according to the stipulation in the statute regarding the Judicial Police officer produced deposition concerning injured parties and witnesses under Paragraph 1 of Article 313, there is a writing of the phrase 'defendant or a suspect other than those under Article 312' and even if the Act uses the term, defendant, there is no objection to the fact that the stipulation includes the Judicial Police officer produced deposition concerning witnesses before prosecution.

In short, Articles 312 and 313 distinguish the deposition standard and disregards whether or not the production date is before or after the prosecution. Article 312 details the deposition produced by prosecutor and Article 131 separately details the deposition produced by judicial police officer.

From this viewpoint, the proposition of the majority and the supplementary opinion is without merit. The opinions use Article 312 as the important legal base for the opinion and state that the deposition under Article 312 only applies to the deposition produced before the prosecution.

D. Although, the argument that prosecutor's production of the deposition after prosecution is sufficient to make such evidence inadmissible is not uniformly convincing, it is obvious that other evidence laws can also decide admissibility.

(1) The illegality of the procedure regarding the prosecutor's production of deposition after the witness is initially interrogated should be individually examined. The exclusion of evidence is well-founded in a situation where there is no legal justification; the witness' physical freedom was restricted in order to make the initial deposition consistent with the testimony in a situation where there was no need for any new investigations; there was some illegality or detention without a warrant or any legal base; and there was a use of illegal interrogation tactics that intruded on the witness' human rights that led to undermining the public trial doctrine and the principle of directness. Even under such circumstances, specific situations such as the contents of the deposition should be examined first.

(2) In order to achieve this, there is a need to investigate whether or not the content of the deposition and the testimony in court are of the same subject matters. In a situation where a prosecutor made the second deposition for the purpose of inducing or forcing statements of denial or acknowledgement without any justifiable reason despite the fact that the contents of the deposition before the prosecution, the in-court testimony, and the second deposition are all of the same subject matters, the illegality of the procedure may be recognized as pointed out in the preceding paragraph because there exists no necessity.

However, there is no justification for not allowing the production of a new deposition and not applying for calling the former witness to be a witness again in a different situation where there is an omission or a mistake in the previous deposition or in the initial appearance at trial, or in a situation where the testimony itself is not sufficient merely by making a statement because an explanation accompanied by the drawing was inevitable.

(3) In focusing on the reality of the in-court testimony, the prosecutor's need for a new investigation cannot be denied in a situation where the witness gives testimony that is involuntary or different from the understanding of content due to a mental disorder, mistake, or problems related to the witness, threat from the defendant, or any other external situations because this new investigation may relieve the witness who has provided a different testimony of anxiety because of the possible punishment for perjury or can be used as a new redemption method to allow a chance for new testimony for aiding the discovery of the truth. In accordance with the principle of discretionary prosecutions, the unreasonable demand that the witness in the above situation can only be investigated under perjury laws cannot be overlooked. Therefore, the decision of the existence of such illegal procedure should consider these points.

E. Also in the present case, the contents of the first deposition of the witness who previously testified and the contents of the later testimony should be evaluated. The reason why the prosecutor took the procedure again, what procedure the prosecutor chose, and the content of the deposition must be investigated to decide whether any illegal grounds exist that can deny the admissibility of evidence. Therefore, the majority opinion that denies the admissibility of evidence of the deposition only because the witness previously testified before cannot be accepted.

F. Therefore, as to a deposition that does not involve any illegality during the preparation that was made after the previous testimony, of which the genuine completion is confirmed by the original person making the statement and the right to cross-examination is guaranteed according to Paragraph 1 of Article 312 of the Criminal Procedure Act, the admissibility of the evidence should be acknowledged, but the value of the evidence should be a decision of the bench. Supreme Court Decision 92Do1555 delivered on August 18, 1992 and other judgments that share the same opinion do not need to be overruled because their issues are different or justifiably decided.

Chief Justice Choi Jong-young (Presiding Justice)

Justices Lee Don-hui

Kim Hyoung-sun (Justice in charge)

Chi Chang-kwon

Shin Seong-taek

Lee Yong-hun

Lee Im-soo

Song Jin-hun

Suh sung

Cho Moo-jeh

Yoo Ji-dam

Yoon Jae-sik

Lee Yong-woo

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