Case concerning the admissibility of an audio recording file and a transcript of statements where the court heard, without administering an oath, the statements of a person staying abroad through an Internet video device

【Holding】

The purport of the Criminal Procedure Act in distinguishing between witnesses and other forms of testimonial evidence (personal evidence), documentary evidence, physical evidence, and other evidence, and then individually and specifically prescribing the method of examining each type of evidence, and in particular, in providing strict procedural rules by requiring that the examination of a witness be conducted by way of "examination" / Whether statements that a judge has heard from a witness by an arbitrary method, without an oath and without going through the witness examination procedure prescribed by the Criminal Procedure Act in accordance with the procedures and methods set forth therein, and evidence that is merely a formal transformation of such statements (such as an audio recording file), are admissible (negative), and whether the same holds true even where the defendant or defense counsel consented to the conduct of such a procedure, or subsequently raised no objection to the result of such evidence examination and consented to the use of the audio recording file, etc. as evidence (affirmative)

【Summary of Decision】

The Constitution declares the principle of due process in the latter part of Article 12(1) and guarantees the "right to be tried in conformity with the law" in Article 27. In order to substantively realize these guarantees, the Criminal Procedure Act adopts as its fundamental principles the adversarial principle and the principle of trial-centered adjudication, under which the substantive examination of a criminal case must be conducted in open court through the offensive and defensive activities of both parties, the prosecutor and the defendant, as well as the principle of direct examination and the principle of adjudication based on evidence, under which the finding of the charged facts must be based solely on evidence directly examined in the presence of the judge.

The Criminal Procedure Act gives concrete form to the foregoing ideals of constitutional criminal procedure by distinguishing between witnesses and other forms of testimonial evidence (personal evidence), documentary evidence, physical evidence, and other evidence, and then individually and specifically prescribing the method of examining each type of evidence. In particular, Part I, Chapter 12 of the Criminal Procedure Act and Part I, Chapter 12 of the Rules of Criminal Procedure require that the examination of a witness be conducted by way of "examination," and set forth strict procedural rules concerning the method of summons, the sanctions and measures applicable where a witness fails to appear in court, the oath to be administered to a witness who appears and the warning as to the punishment for perjury, notification of the right to refuse to testify, and the specific method of examination; at the same time, they permit a witness to testify without personally appearing in court only exceptionally, where the grounds prescribed in the provisions on examination outside the courtroom (Article 165) and on witness examination through video or other relay devices (Article 165-2) exist. The purpose of this is to ensure the fairness of the trial and the reliability and truthfulness of the testimony by requiring, as a rule, that a witness, who is the most direct and central source for ascertaining the substance of a case, appear in open court, take an oath before the judge, and then testify by way of examination in accordance with the prescribed procedure, and to have the judge ascertain the substance of the case according to the conviction as to guilt or innocence formed on the basis of such witness statements.

Therefore, absent special circumstances, the examination of evidence for the purpose of finding the facts of a crime must be conducted in open court in the manner prescribed by law for the relevant type of evidence, and the court must determine, according to the conviction formed on that basis, whether the facts of the crime charged have been proven beyond a reasonable doubt. Statements that a judge has heard from a witness by an arbitrary method, without an oath and without going through the witness examination procedure prescribed by the Criminal Procedure Act in accordance with the procedures and methods set forth therein, and evidence that is merely a formal transformation of such statements (such as an audio recording file), are evidence that has not undergone a lawful evidence examination procedure and are therefore inadmissible. Accordingly, they cannot be used as material for fact-finding, and such illegality is not cured even where the defendant or defense counsel consented to the conduct of such a procedure, or subsequently raised no objection to the result of such evidence examination and consented to the use of the audio recording file, etc. as evidence.

【Referenced Statutes】

Articles 12(1) and 27 of the Constitution; Articles 150-2, 151, 156, 157, 158, 160, 161-2, 165, 165-2, 275, 307, and 318 of the Criminal Procedure Act

【Referenced Precedents】

Supreme Court Decision 2011Do11115, November 10, 2011
Supreme Court Decision 2013Do6825, November 28, 2019 (Gong 2020Sang, 210)

(Source: Supreme Court Decision 2020Do14843, September 12, 2024 [Fraud] > Comprehensive Legal Information System, Precedents)