[2] Whether the attorney’s right to participate under Articles 219 and 121 of the Criminal Procedure Act is given to the attorney for the protection of the person subject to seizure (affirmative) / Where the person subject to seizure expresses his/her intention not to participate in the execution of the search and seizure warrant to the investigation agency, whether the attorney should separately guarantee the opportunity to participate in the execution of the search and seizure warrant by notifying the time and place of execution in advance (affirmative in principle)

[3] The purport of Article 308-2 of the Criminal Procedure Act that specifies the principle of exclusion from illegally collected evidence / Whether the evidence obtained without following due process and the secondary evidence obtained based on such evidence is admissible (negative in principle) / Cases where the admissibility of the secondary evidence obtained based on such evidence can be exceptionally acknowledged, and the criteria for its determination

[2] The right of attorney to participate in the execution of a warrant of search and seizure under Articles 219 and 121 of the Criminal Procedure Act is the inherent right given to the attorney for the protection of the person against whom the warrant is served. Therefore, even if the person against whom the warrant of search and seizure has been served stated that he/she does not participate in the execution of the warrant of search and seizure, barring any special circumstance, the attorney should be separately guaranteed the opportunity to participate in the execution of the warrant of search and seizure by notifying the time and place of execution

[3] Article 308-2 of the Criminal Procedure Act provides that “Any evidence collected in violation of the due process shall not be admitted as evidence.” This means that the principle of exclusion from evidence illegally obtained in order to realize the constitutional ideology of guaranteeing fundamental human rights by suppressing and preventing recurrence of illegal search and seizure processes, including illegal search and seizure. Article 12 of the Constitution declares the due process and warrant principle regarding search and seizure in order to guarantee fundamental human rights, and the Criminal Procedure Act provides concrete criteria for the search and seizure procedure so that the ideology of real truth investigation and the protection of individual rights can be achieved harmoniously. As such, it is necessary to maintain the normative power of the Constitution and the Criminal Procedure Act, and to restrain illegal acts in the investigation process, secondary evidence obtained on the basis thereof as well as evidence collected without following due process should not be admitted as evidence for conviction in principle.

However, it does not conform to the purpose of the Constitution and the Criminal Procedure Act to uniformly deny admissibility of evidence on the sole ground that it is evidence collected in violation of the legal procedure. This is because the realization of legitimate penal authority through the discovery of substantial truth is an important purpose and ideology that the Constitution and the Criminal Procedure Act intends to achieve through criminal proceedings. Rather, the exclusion of admissibility of evidence does not constitute a violation of the substantive substance of due process. Rather, in exceptional cases where the Constitution and the Criminal Procedure Act are deemed to bring about a result contrary to the purport of the establishment of procedural provisions concerning criminal procedure and the establishment of harmony between the substantive truth and the realization of justice in criminal cases through the establishment of procedural provisions concerning criminal procedure, the court shall be deemed to have used as evidence to acknowledge guilt. Whether it is so, the purport and degree of the procedural provisions, the specific process and degree of the violation, the nature and degree of infringement of the right and legal interest to be protected, the relationship between the defendant and such right and legal interest, the relationship between the procedure and the defendant, and the perception and intent of the investigative agency, etc., should be comprehensively examined based on evidence collection and evidence conducted without complying with the two evidence collection procedure.

1. A. A. When an investigative agency executes a search and seizure warrant, the person subject to the search and seizure or his/her defense counsel may participate in the execution thereof (Articles 219 and 121 of the Criminal Procedure Act). In cases where printing out or printing out storage devices within the scope of the search and seizure process is impossible, or where copying, searching, and printing out digital information into an investigative agency, etc. (hereinafter referred to as “duplicated copies”) is recognized as exceptional circumstances making it substantially difficult to achieve the purpose of search and seizure, the warrant principle and due process should be complied with, such as taking appropriate measures to guarantee the party subject to the search and seizure or his/her defense counsel’s opportunity to participate in the search and seizure or to prevent the arbitrary reproduction, etc. of digital information irrelevant to the suspected criminal facts, barring any special circumstance such as where the party subject to the search and seizure explicitly expressed his/her intention not to participate in the aforementioned procedure or the process of the violation, or where the purport of guaranteeing the participation of the party subject to the search and seizure procedure cannot be deemed lawful. This also applies.

Meanwhile, the right to participate in a search and seizure under Articles 219 and 121 of the Criminal Procedure Act is given to the defense counsel for the protection of the person against whom the search and seizure warrant was served. Therefore, even if the person against whom the search and seizure warrant was served clearly stated that he/she does not participate in the execution of the search and seizure warrant, barring special circumstances, the defense counsel should be separately guaranteed the opportunity to participate in the execution of the search and seizure warrant by notifying the time and place of the execution in advance pursuant to Articles 2

B. Article 308-2 of the Criminal Procedure Act provides that “Any evidence collected in violation of the due process shall not be admitted as evidence.” This specifies the principle of exclusion from evidence illegally obtained in order to realize the constitutional ideology of guaranteeing fundamental human rights by preventing illegal acts in the investigation process, including illegal search and seizure, and preventing recurrence thereof (see, e.g., Supreme Court Decisions 2010Do2094, Mar. 14, 2013; 2018Do20504, Jul. 11, 2019). Article 12 of the Constitution declares the due process and principle of warrant regarding search and seizure in order to guarantee fundamental human rights, and the Criminal Procedure Act provides detailed criteria for the search and seizure procedure so that the ideology of real truth and the protection of individual rights can be achieved harmoniously. As such, it is necessary to maintain the normative power of the Constitution and the Criminal Procedure Act, and prevent unlawful acts in the investigation process, and thus, it is not necessary to establish evidence obtained based on legitimate procedures, as well as evidence obtained based on evidence obtained without following legitimate procedures.

However, denying admissibility of evidence solely on the ground that it is evidence collected in violation of the procedure prescribed by the Act does not conform to the purpose of the Constitution and the Criminal Procedure Act. This is because the realization of legitimate penal authority through the discovery of substantial truth is an important purpose and ideology that the Constitution and the Criminal Procedure Act intends to achieve through criminal proceedings. If an investigation agency’s procedural violation does not constitute a violation of the substance of due process, and rather, the Constitution and the Criminal Procedure Act are deemed to bring about a result contrary to the intent of promoting harmony between the principle of due process and substantive truth and real justice in criminal justice through the formulation of procedural provisions, the court should be deemed to have used as evidence for finding guilt. Whether it is reasonable should be determined as evidence of all circumstances related to an investigation agency’s violation of the procedure, namely, the purport and degree of violation, specific details and degree of violation, the nature and degree of infringement of the right and legal interest to be protected, the relationship between such right and the defendant, the relationship between the procedure and the investigation agency, and the awareness and intent of the investigation agency. This legal doctrine should also be considered as evidence collected and evidence.

2. A. The gist of the facts charged in the instant case is as follows.

In 2019, the Defendant: (a) attached a small camera with tape to the outside of a garbage tank in the burine column; (b) attached a auxiliary camera connected to the said camera inside the garbage tank; (c) taken the burine of a woman’s burine and burine from around 2013 to 296 times in total, as indicated in No. 1 to 296 of the crime list in the lower judgment, from around 2019 to 2019, the Defendant taken a photograph of the victim’s burine and burine on the part of the victim, who had a burine, from the outside of the garbage tank; and (d) attached the auxiliary camera connected to the said camera to the outside of the garbage tank; and (e) applied a video camera; and (e) taken the burine of the victim’s body against the victim’s will that may cause sexual humiliation or shame by using a mechanical device equipped with similar functions.

B. For the following reasons, the lower court reversed the first instance judgment convicting the Defendant on this part of the facts charged and rendered a not guilty verdict.

1) On October 30, 2019, an investigative agency violated due process by executing a search and seizure warrant by searching, copying, and printing storage devices at an investigative agency’s office without notifying Defendant’s public defender of the time and place of execution in advance.

2) Considering the fact that the Defendant was detained at the time and the importance of the participation procedure as prescribed in Articles 219 and 121 of the Criminal Procedure Act, the above violation of due process is heavier.

3) Therefore, the dynamic image closures, etc. collected through illegal search and seizure cannot be used as evidence pursuant to Article 308-2 of the Criminal Procedure Act. The confession of the defendant and the confession of the defendant based on the above evidence, or the sole evidence of this part of the facts charged, cannot be used as evidence of guilt pursuant to Article 308-2 of the Criminal Procedure Act or Article 310 of the Criminal Procedure Act.

3. The above determination by the court below is difficult to accept for the following reasons.

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) Around 09:00 on October 25, 2019, Nonindicted Party 1’s senior judicial police officer, who belongs to the Gyeonggi Government Police Station, seized one unit of the main body of the computer owned by the Defendant (hereinafter “instant computer”) based on a warrant of seizure, search, and verification issued by a judge of the District Court at the Defendant’s dwelling (hereinafter “instant warrant”) at the Defendant’s dwelling on October 24, 2019, and one unit of the gallon-gallon 8 mobile phone (hereinafter “instant cell phone”) to the police station.

2) At the time, the Defendant participated in the process of sealing digital device and storage media, and confirmed that there is no error in the seals, received notice that he may participate in the process of removing seals, acquiring copies, searching for, copying, and printing digital device, storage media, or reproduction, and affixed a signature and seal on each original written confirmation on the instant computer and mobile phone.

3) At the first police interrogation conducted immediately after that, the Defendant stated, “At the first police interrogation, the Defendant installed a Makamera, which was purchased via the Internet in the toilets, such as a kitchen and singing room for four to five years, taken the women’s sound, etc. on the Internet, and stored the video on the hard disc of the instant computer.”

4) On October 25, 2019, Nonindicted Party 2, who belongs to the Gyeonggi Government Police Station, searched the hard disc of the instant computer and discovered a number of video files, etc., which appears to have been taken by the Defendant in the brush, and then prepared an investigation report containing the purport thereof, and attached a photograph of the brue screen in which the video files were stored.

5) Meanwhile, on October 25, 2019, the prosecutor filed a request for detention warrant against the Defendant, and on October 26, 2019, the judge of the Jung-gu District Court appointed Nonindicted 3 as the Defendant’s public defender and issued the detention warrant following the suspect examination against the Defendant.

6) On October 29, 2019, the Defendant stated, at the second police interrogation, that “from around 2011 to around 2019, the Defendant took pictures of another person’s body by installing Mameras in a toilet at a total of five toilets, including each place of crime indicated in the instant facts charged, including the place of crime in the instant facts charged, from around 201 to around 2019,” and specified each year’s place of crime.

7) On October 30, 2019, Nonindicted 1, Nonindicted 4, and Nonindicted 2, who belongs to the Gyeonggi Government Police Station, searched three hard diskss attached to the instant computer at their respective offices, and printed out the relevant video files together with the images that cut down the relevant video files (hereinafter referred to as “the instant printed materials” in combination with all printed materials).

8) However, the investigative agency did not give prior notice to the defendant's public defender on the search and reproduction of the computer of this case and the production procedure of output of this case. The defendant or the above public defender did not participate in the above procedure.

B. Examining the above facts in light of the legal principles as seen earlier, even if the Defendant expressed to the investigative agency that he would not participate in the process of searching, copying, and printing the computer of this case, the investigative agency did not provide the Defendant’s defense counsel with an opportunity to participate in the above procedure by notifying the time and place of execution prior to searching, copying, and printing the computer of this case, which is a storage device, at the investigative agency office on October 30, 2019. Therefore, the lower court was justifiable to have determined that the investigative agency, which executed the warrant of this case, violated the seizure procedure by violating the principle of free evaluation of evidence in violation of logical and empirical rules, and did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by

C. 1) However, in full view of all the following circumstances revealed through the above facts and records, there is sufficient room to view that: (a) the above-mentioned procedural violation by an investigative agency does not constitute a violation of the substantive contents of due process; (b) rather, (c) excluding the admissibility of evidence collected through the execution of the instant warrant constitutes an exceptional case deemed to result in a violation of the Constitution and the Criminal Procedure Act’s establishment of a procedural provision on criminal procedure to harmonize the principles of due process with the substantial truth-finding and to realize criminal justice.

A) On October 25, 2019, an investigative agency confirmed that the Defendant, who was the sole participant as the only participant at the time of seizure, would not participate in the process of searching, copying, and printing the computer of this case and started searching for the computer of this case. At the time of the above searching, the Defendant’s statement that “the video is stored on the hard disc of the computer of this case.”

B) After that time when the Defendant’s public defender was appointed, it seems that the investigative agency had been aware of the position of the Pool where the digital information subject to seizure was stored by proceeding to a certain degree of search search for the computer of this case.

C) The defendant’s state appointed defense counsel did not inquire about the execution status of the instant warrant to an investigative agency or request the defendant to participate in the process.

D) Despite the intent to waive or refuse the participation of the person subject to the seizure at the time of the execution of the instant warrant, there is no precedent or internal guidelines within the investigative agency regarding the fact that a separate advance notice should be given to the selected or selected counsel after the commencement of the search and seizure procedure.

E) During the process of executing the instant warrant, an investigative agency seized a video recording recording the body of victims from 201 to 200 persons, which was installed in a toilet, such as a voice room, singing room, etc., and prosecuted the crime of 296 items among them (the instant charges are the issues charged). The Defendant, at an investigative agency and a court, led to the confession of all the above crimes.

2) If so, the lower court should have carefully determined whether it constitutes an exception to the principle of exclusion of illegally collected evidence, comprehensively taking into account the following: (a) the process of search and seizure in accordance with the instant warrant; (b) the relevant provision regarding the procedure for seizure of electronically stored information, the intent of proving seized evidence; (c) the process leading up to the violation of the procedure; and (d) the perception and intent of the investigative agency as to the process of the violation

Nevertheless, solely for the reasons indicated in its holding, the lower court concluded that the evidence collected through the search and seizure of the warrant of this case cannot be used as evidence of guilt and acquitted the instant facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on exceptions to the principle of exclusion from illegally collected evidence, thereby failing to exhaust all necessary deliberations. The Prosecutor’s grounds of appeal assigning this error are with merit

4. Therefore, the non-guilty part of the judgment below is reversed, and that part of 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 Noh Jeong-hee (Presiding Justice)