Competency of Accomplices as Witnesses, the Distinction of Hearsay Evidence, and Separate Sentencing for Concurrent Crimes: Three Supreme Court Judgments on Criminal Trial Procedure

Question

Three Supreme Court judgments are used to set out the competency as witnesses of accomplice co-defendants whose proceedings have been separated, the distinction between original evidence and hearsay evidence according to the fact to be proved, and the scope of separate sentencing under the Public Official Election Act. The order in which the admissibility of in-court statements and of documents is determined is also examined.

The first issue is the question addressed in Judgment 2024Do163, namely: "When an accomplice in the fraudulent acquisition of construction payments is examined in separated proceedings, does false testimony constitute the crime of perjury with intent to harm another?" The second issue is the question addressed in Judgment 2018Do14303: "In a case involving a former President, how are the admissibility of work notebooks and the separate sentencing of punishments determined?"

The third issue is the question addressed in Judgment 2018Do13792: "In charges of bribery received by a former President in conspiracy with a non-public official, and of abuse of authority and coercion, how are co-principalship and admissibility of evidence determined?" All three judgments ask how the boundaries of the statutory wording and the substantive factors for determination are to be distinguished on the record.

Material to check

First (2024Do163), this decision addresses whether a co-defendant who is an accomplice and who, by virtue of the severance of litigation proceedings, is no longer in the status of a defendant, may become a witness as to the facts charged against another co-defendant. To confirm competence as a witness on the records, one must examine the hearing records and trial minutes showing whether the litigation proceedings against the co-defendants were severed. To confirm whether notification of the right to refuse to testify was given, examine the record of examination of the witness together with the record of the notification.

Second (2018Do14303), this decision addresses the distinction between hearsay evidence and original evidence, the scope of reversal as to a co-defendant whose grounds for reversal are common, and whether separate sentences are imposed for the bribery offense and other offenses. To verify on the records the standard stated in the Summary of Decision, namely that it "is determined according to what the fact to be proved is," examine whether a document in which statements are recorded is used to prove the truth of its content, or used to prove the mere existence of the statement. To verify the requirements for separate sentencing, review together the indictment records distinguishing the facts charged of bribery related to duties during tenure from the remaining facts charged, and the sentencing records.

Third (2018Do13792), this decision addresses the distinction between hearsay evidence and original evidence, the establishment of joint principal offender liability between a public official and a non-public official in the offense of accepting bribes, the meaning of a benefit as a bribe and of receipt, and the meaning of threat in the offense of accepting bribes from a third party and the offense of coercion. To verify on the records the "joint plan of action" referred to in the Summary of Decision, examine the indictment records and the materials on the circumstances of receipt showing an express or implicit conspiracy between the public official and the non-public official to receive money, goods, or benefits in connection with their duties. To verify the meaning of a benefit as a bribe and of receipt, review together the records showing acquisition of possession of the object and whether its return was demanded, the bearing of expenses, and the form of transfer of ownership.

Possible readings

In Case 2024Do163, the issues were whether an accomplice co-defendant who has ceased to hold the status of a defendant through the separation of proceedings may become a witness regarding the facts charged against another co-defendant, and whether the existing legal doctrine on the subject of the crime of perjury should be maintained.

In Case 2018Do14303, the issues were the criterion for distinguishing whether a statement whose content is another person's statement, or a document recording such a statement, is hearsay evidence or original evidence, and the scope within which a ground for reversal is common to co-defendants under Article 364-2 of the Criminal Procedure Act.

In Case 2018Do13792, the issues were the criterion for distinguishing whether a document recording a statement constitutes hearsay evidence, and the requirements for a public official and a person who is not a public official to be co-principals in the crime of accepting a bribe.

What the decisions held

Supreme Court en banc Judgment 2024Do163 delivered 19 March 2026 held as follows: "With respect to the subject of the crime of perjury, the current legal doctrine on whether an accomplice co-defendant has competency as a witness regarding the facts charged against another co-defendant is sound and should therefore be maintained." By this judgment, the Supreme Court maintained the current doctrine, holding that, under Article 146 of the Criminal Procedure Act, an accomplice whose proceedings have been separated may become a witness as a third party who is not the defendant. It stated that there is no infringement of the privilege against self-incrimination so long as the right to refuse to testify under Articles 148 and 160 of the Criminal Procedure Act is substantively guaranteed. It rejected the view distinguishing between temporary and final separation, since that view in effect disputes the court's discretion under Article 300 of the Criminal Procedure Act. It considered that, in types of crime where objective physical evidence of conspiracy or participation in the crime is unlikely to exist, there are parts that can in practice be proved only through the statements of accomplices, so that examination as a witness, which carries the duty of truthfulness and cross-examination, is more suitable than examination of the defendant. It held that the concern that exercising the right to refuse to testify may be read as an implication of guilt is not essentially different from the concern about silence during examination of the defendant, and therefore does not constitute a ground for denying competency.

Supreme Court en banc Judgment 2018Do14303 delivered 29 August 2019 held as follows: "Whether a statement whose content is another person's statement is hearsay evidence is determined according to what the fact to be proved is." By this judgment, the Supreme Court held that where the content of the original statement is the fact to be proved, the statement is hearsay evidence, and that where a statement admitted as circumstantial evidence is then used again to prove its content, it constitutes hearsay evidence. It stated that the portions recording instructions are original evidence and may be used once their authenticity is proved by the author's statement, whereas the portions recording the content of conversations may not be used because there is no proof that they were made under circumstances of particular reliability. It held that the work notebooks were no more than records kept for convenience and therefore did not constitute documents under Article 315 subparagraph 3. It held that, because Article 364-2 applies only among co-defendants tried jointly, the court below erred in applying it to this part, which had not been joined, but that the error did not affect the judgment since reversal ex officio was possible. It held that the court below, which applied Article 38 of the Criminal Act to the bribery offences and the other offences and imposed a single sentence, erred in violating Article 18(3) of the Public Official Election Act, and that the part convicting the defendant was therefore to be reversed.

Supreme Court en banc Judgment 2018Do13792 delivered 29 August 2019 held as follows: "‘Receipt’ in the crime of accepting a bribe means receiving, that is, acquiring the bribe." By this judgment, the Court held that hearsay evidence is distinguished by what the fact to be proved is; that a statement becomes hearsay evidence when used to prove the truth of its content; and that using a statement admitted as circumstantial evidence as a circumstantial fact proving the content of the statement also constitutes hearsay. It held that a public official and a non-public official become co-principals under Article 129(1) of the Criminal Act where they share an intention of joint commission and functional control over the act, and that a non-public official who is a co-principal cannot be a third party under Article 130 of the Criminal Act. It held that, for the horses given as bribes, legal ownership was not required, and that the horses themselves were received where substantive authority to use and dispose of them was acquired in a relationship in which possession and return were not demanded; it recognised a meeting of minds on 15 November 2015. It stated that a threat constituting coercion requires a specific notice of harm, that a threat cannot be presumed merely from the fact that a demand was made from a position of authority, and that the mere fact of complying in expectation of something in return can hardly be regarded as a notice of harm.

Practical checklist

First, when an accomplice in obtaining by fraud of construction contract payments is examined separately, does the crime of perjury harmful to another arise from false testimony? On the records, examine whether the litigation proceedings were severed so that the status of defendant was left behind, whether false statements contrary to memory were made after notification of the right to refuse to testify, and check against the design drawings, site photographs, and construction payment records.

Second, in a case involving a former president, how are the admissibility of a work notebook and separate sentencing on each count determined? On the records, distinguish whether a document in which statements are recorded is used to prove the truth of its content according to what the fact to be proved is, and examine from the indictment records and sentencing records whether the bribery offense related to duties during tenure and the remaining offenses were separately sentenced.

Third, in charges of bribery received in conspiracy between a former president and a non-public official and of abuse of authority and coercion, how are joint principal offender liability and admissibility of evidence distinguished? On the records, examine whether there was a joint plan of action and functional control over the act between the public official and the non-public official, and distinguish according to what the fact to be proved is whether a document in which statements are recorded is used to prove the truth of its content.

Glossary

Competency of an accomplice co-defendant as a witness after separation of proceedings, and the criterion for the crime of perjury (2024Do163): The Supreme Court maintained the current doctrine, holding that, under Article 146 of the Criminal Procedure Act, an accomplice whose proceedings have been separated may become a witness as a third party who is not the defendant. It stated that there is no infringement of the privilege against self-incrimination so long as the right to refuse to testify under Articles 148 and 160 of the Criminal Procedure Act is substantively guaranteed. It rejected the view distinguishing between temporary and final separation, since that view in effect disputes the court's discretion under Article 300 of the Criminal Procedure Act. It considered that, in types of crime where objective physical evidence of conspiracy or participation in the crime is unlikely to exist, there are parts that can in practice be proved only through the statements of accomplices, so that examination as a witness, which carries the duty of truthfulness and cross-examination, is more suitable than examination of the defendant. It held that the concern that exercising the right to refuse to testify may be read as an implication of guilt is not essentially different from the concern about silence during examination of the defendant, and therefore does not constitute a ground for denying competency. The factors for determination identified include the substantive guarantee of the right to refuse to testify, the various circumstances of separation and joinder of proceedings, and the duty of truthfulness and cross-examination in witness examination.

Distinguishing the admissibility of hearsay evidence and the criterion for sentencing concurrent crimes in major criminal cases (2018Do14303): The Supreme Court held that where the content of the original statement is the fact to be proved, the statement is hearsay evidence, and that where a statement admitted as circumstantial evidence is then used again to prove its content, it constitutes hearsay evidence. It stated that the portions recording instructions are original evidence and may be used once their authenticity is proved by the author's statement, whereas the portions recording the content of conversations may not be used because there is no proof that they were made under circumstances of particular reliability. It held that the work notebooks were no more than records kept for convenience and therefore did not constitute documents under Article 315 subparagraph 3. It held that, because Article 364-2 applies only among co-defendants tried jointly, the court below erred in applying it to this part, which had not been joined, but that the error did not affect the judgment since reversal ex officio was possible. It held that the court below, which applied Article 38 of the Criminal Act to the bribery offences and the other offences and imposed a single sentence, erred in violating Article 18(3) of the Public Official Election Act, and that the part convicting the defendant was therefore to be reversed. The factors for determination identified include the content of the fact to be proved, the existence of the original statement as such, and whether the statement is used to prove the truth of its content.

Order of determining admissibility of evidence and co-principalship in large-scale abuse-of-authority and bribery cases (2018Do13792): The Court held that hearsay evidence is distinguished by what the fact to be proved is; that a statement becomes hearsay evidence when used to prove the truth of its content; and that using a statement admitted as circumstantial evidence as a circumstantial fact proving the content of the statement also constitutes hearsay. It held that a public official and a non-public official become co-principals under Article 129(1) of the Criminal Act where they share an intention of joint commission and functional control over the act, and that a non-public official who is a co-principal cannot be a third party under Article 130 of the Criminal Act. It held that, for the horses given as bribes, legal ownership was not required, and that the horses themselves were received where substantive authority to use and dispose of them was acquired in a relationship in which possession and return were not demanded; it recognised a meeting of minds on 15 November 2015. It stated that a threat constituting coercion requires a specific notice of harm, that a threat cannot be presumed merely from the fact that a demand was made from a position of authority, and that the mere fact of complying in expectation of something in return can hardly be regarded as a notice of harm. The factors for determination identified include the duties concerned and the content of the solicitation, the relationship with the provider of the benefit, and the circumstances and timing of the receipt.

Sources and limitations

This white paper was prepared solely on the basis of the texts of Article 146, Article 156, Article 307, Article 310-2, Article 312, Article 313, Article 314, Article 316 of the Criminal Procedure Act, Article 30, Article 37, Article 38, Article 152 of the Criminal Act, and Article 18 paragraph (1) subparagraph 3 and Article 18 paragraph (3) of the Public Official Election Act, as published on the Korea Law Information Center, and the judgment texts of Supreme Court Decision 2024Do163 decided March 19, 2026, Supreme Court Decision 2018Do14303 decided August 29, 2019, and Supreme Court Decision 2018Do13792 decided August 29, 2019.

This is an academic research material organizing general legal principles and standards for record review, and is not legal advice on an individual case or an opinion submitted to a court.

Points left open

2024Do163: How far can the procedural device of temporary severance displace the defendant's right of defense?

2018Do14303: When a recorded statement admitted as circumstantial evidence is used again to prove the content, at what point is admissibility of evidence determined?

2018Do13792: Where there is an agreement transferring substantive authority to dispose of the horse, where is the line drawn between a bribe of a joint principal offender and a bribe of a third party?

When to reconsider

2024Do163: If the actual manner of notification of the right to refuse to testify and the circumstances of severance and consolidation appear differently in the records, there may be grounds for revisiting the matter. It also becomes a condition warranting examination of whether omission of the notification impeded the exercise of the right to refuse.

2018Do14303: Revisit if proof of trustworthy circumstances under Article 316 paragraph (1) or the guarantee of credibility under Article 315 subparagraph 3 is confirmed in the records.

2018Do13792: Revisit if the court below's determination of the guilty portion that was reexamined and the underlying records emerge.

Statutes referred to

• 형사소송법 제146조, 제156조, 제307조, 제310조의2, 제312조, 제313조, 제314조, 제316조
• 형법 제30조, 제37조, 제38조, 제152조
• 공직선거법 제18조 제1항 제3호, 제18조 제3항

Decisions referred to

• 대법원 2026. 3. 19. 선고 2024도163 전원합의체 판결 · Decision ledger
• 대법원 2019. 8. 29. 선고 2018도14303 전원합의체 판결 · Decision ledger
• 대법원 2019. 8. 29. 선고 2018도13792 전원합의체 판결 · Decision ledger

Verification status

The cited provisions (Article 146, Article 156, Article 307, Article 310-2, Article 312, Article 313, Article 314, Article 316 of the Criminal Procedure Act; Article 30, Article 37, Article 38, Article 152 of the Criminal Act; Article 18 paragraph (1) subparagraph 3 and Article 18 paragraph (3) of the Public Official Election Act) and the decisions reviewed (Supreme Court Decision 2024Do163 decided March 19, 2026, Supreme Court Decision 2018Do14303 decided August 29, 2019, Supreme Court Decision 2018Do13792 decided August 29, 2019) were cross-checked against the current statutes on the Korea Law Information Center and the full texts of Supreme Court decisions as of 2026-10-15. This white paper cites only the three decisions listed under Decisions Reviewed.