[2] In a case where an investigative agency seizes separate evidence irrelevant to the suspected criminal facts on which a warrant was issued, whether it may be used as evidence of conviction (negative in principle)

[3] Matters to be considered when the court finally determines whether to admit the admissibility of the secondary evidence

[2] Even in cases where there is a need to conduct a criminal investigation and there is a circumstance to suspect that a suspect has committed a crime, an investigative agency may conduct a search and seizure with a warrant issued only to the extent that it is deemed to be related to the pertinent case. If evidence is not relevant to the facts suspected of a crime, which was the ground for issuing the warrant, it is not a legitimate search and seizure. Therefore, in cases where separate evidence irrelevant to the facts suspected of a crime, which was the ground for issuing the warrant, was seized, this cannot be used as evidence

[3] When a court finally determines the admissibility of the secondary evidence, it should first consider all circumstances related to the collection of the primary evidence, i.e., the purport of the procedural provision and its content and degree of violation, specific course and possibility of avoidance, nature of the right or legal interest to be protected, degree of infringement, relation between the defendant and the defendant, degree of causation between procedural violation and the collection of evidence, and perception and intention of the investigative agency, etc. In addition, all additional circumstances in the process of collecting the secondary evidence based on the primary evidence should be mainly considered as a whole and a comprehensive consideration, focusing on whether causation has been dissolved or cut down, depending on specific cases.

1. As to the Defendant’s ground of appeal

The gist of the Defendant’s ground of appeal is that the documents listed in No. 1 of the annexed crime list in the judgment of the court below do not contain any official secrets. However, this does not constitute a legitimate ground of appeal as it is alleged in the ground of appeal by the Defendant only in the absence of the Defendant’s grounds of appeal or ex officio determination. Furthermore, even in light of the evidence duly admitted by the court below, the documents listed in No. 1 of the annexed crime list in the judgment of the court below are organized by the Defendant’s recommendation of the special staff members to be dispatched to China for the elected person at the time, and if such documents are leaked to the outside in advance, they are likely to disrupt the personnel function of the presidential elected person. Thus, the documents are classified as official secrets worth protecting, which should not be disclosed to the outside until a final decision is made. Ultimately, the court below did not err in

2. As to the Prosecutor’s Grounds of Appeal

A. Determination as to the admissibility of evidence seized with a search and seizure warrant (hereinafter “instant warrant”) dated October 25, 2016

(1) Article 12(1) of the Constitution provides that any person who intends to guarantee a person’s physical freedom as one of the fundamental rights shall not be arrested, detained, seized, searched, or examined (Article 12(1)) except as otherwise provided by Acts (Article 12(1)); and Article 12(3) provides that a warrant issued by a judge upon the request of a prosecutor shall be presented according to lawful procedures (main sentence of Article 12(3)).

Articles 114 and 219 of the Criminal Procedure Act provide for the matters to be stated in a search and seizure warrant. This includes not only the name and name of the defendant or suspect, but also the articles to be seized, place, body, and articles to be searched. Article 215 of the Criminal Procedure Act provides that a public prosecutor or judicial police officer may conduct a search and seizure by a warrant issued by a judge only when there is a circumstance to suspect that a suspect committed an offense if necessary for a criminal investigation, and only when it can be recognized as having relation to the relevant case. As such, the Criminal Procedure Act provides for strict requirements and procedures for search and seizure in order to guarantee fundamental rights, such as physical freedom, privacy and freedom. Furthermore, Article 308-2 of the Criminal Procedure Act provides that evidence collected without following lawful procedures shall not be admitted as evidence.

(2) An investigative agency may conduct a search and seizure after obtaining a warrant only to the extent that it is deemed necessary to conduct a criminal investigation and there is a circumstance to suspect that a criminal suspect committed a crime. If evidence irrelevant to the suspected criminal fact which was the ground for issuing the warrant is not a lawful search and seizure, it is not a lawful search and seizure. Therefore, if separate evidence irrelevant to the suspected criminal fact which was the ground for issuing the warrant was seized, in principle, it cannot be used as evidence for conviction (see, e.g., Supreme Court Decisions 2013Do11233, Mar. 10, 2016; 2017Do3449, Nov. 14, 2017).

(3) For the following reasons, the lower court maintained the first instance court’s decision that did not recognize admissibility on the ground that each of the documents listed in [Attachment 2 to 34] No. 2 through 34 in the judgment of the lower court discovered in the process of copying and searching the digital information stored in the outer lower court, which was confiscated by the instant warrant (hereinafter “the instant outer lower court”) and the documents arranged the list, and the investigation report organized the list, constitutes illegally collected evidence.

(A) The criminal facts stated in the instant warrant are as follows: (a) Nonindicted 1, etc. collected donations of KRW 86.6 billion in violation of the Act on the Collection and Use of Donations in the course of the establishment and operation of Nonindicted Incorporated Foundation 2 (hereinafter “Nonindicted Incorporated Foundation 2”) and Nonindicted Incorporated Foundation 3 (hereinafter “Nonindicted Incorporated 3”); (b) forged and exercise minutes of the inaugural general meeting of Nonindicted Incorporated 2 and Nonindicted Incorporated 3; (c) interfere with the permission for the establishment of a corporation by the public official in charge; and (d) by having multiple companies contribute KRW 86.6 billion, thereby obtaining pecuniary profits from Nonindicted Incorporated 2 and Nonindicted Incorporated 3; and (d) using some of the above contributions as the operating fund of Nonindicted Incorporated 4.

(B) The phrase “goods to be seized” in the instant warrant refers to the items of subparagraphs 1 through 7 owned or kept by Nonindicted Party 1 in connection with the above criminal facts. Of them, subparagraph 1 of the instant warrant states that “documents related to the establishment and operation of Nonindicted Corporation 2 and Nonindicted Corporation 3, such as reports, accounting documents, approval documents, business log, pocket book, mail book, etc.”

(C) However, it is difficult to deem that the instant digital information seized with the instant warrant constitutes either item, including subparagraph 1 as indicated in the instant warrant’s item, inasmuch as it is difficult to view that it constitutes direct or indirect evidence regarding the facts constituting an offense indicated in the instant warrant. Moreover, unlike the Prosecutor’s assertion, it is difficult to view that the instant digital information constitutes an item, including subparagraph 1 as indicated in the instant warrant’s item.

(D) In the event that, while investigating the digital information stored in the outer west, the investigation agency found the digital information of this case not included in the “goods to be seized” as stated in the instant warrant, but if it finds it necessary to seize it ex officio, the investigation agency suspended further search and seizure, and obtained a search and seizure warrant from the court. However, the investigation agency did not obtain a separate search and seizure warrant.

(E) Therefore, the output of electronic information of this case constitutes illegally collected evidence under Article 308-2 of the Criminal Procedure Act, and cannot be used as evidence of conviction. Such procedural illegality constitutes an infringement of warrant requirement or due process under the Constitution, and thus, it cannot be exceptionally admitted as evidence.

(4) Examining the lower court’s oil in light of the aforementioned legal principles and records, the said determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the admissibility

B. Determination as to admissibility of so-called "second evidence", such as each protocol of interrogation of the defendant, the defendant's statement in court, and the defendant's testimony in the Constitutional Court, etc.

(1) When a court finally determines whether to admit the admissibility of the secondary evidence, i.e., all circumstances related to the collection of the primary evidence that did not follow the procedure first, namely, the purport of the procedural provision and its content and degree of violation, specific course and possibility of avoidance, nature of the right or legal interest to be protected, degree of infringement, relationship between the defendant and the defendant, degree of causation between the procedural violation and the collection of evidence, and perception and intention of the investigative agency, etc. In addition, the court should consider all additional circumstances in the course of collecting the secondary evidence based on the primary evidence as a whole, based on the specific case, mainly on whether causation was dissolved or cut down (see, e.g., Supreme Court Decisions 2012Do13607, Mar. 28, 2013; 2013Do7101, Jan. 16, 2014).

(2) The court below maintained the judgment of the court of first instance that did not recognize admissibility on the grounds that the defendant's secondary evidence collected based on the electronic information of this case, and the defendant's prosecutor's statement and the court's statement, as well as the secondary evidence obtained based on it, were the secondary evidence of illegally collected evidence for the following reasons.

(A) The Defendant’s statement is the same as having received directly the printed electronic information of this case, which is illegally collected evidence, or at least the Defendant’s statement can be deemed as having responded to the examination premised on the content of the printed electronic information of this case.

(B) At the time, the Defendant was informed that the output of the electronic information of this case could constitute illegally collected evidence, or failed to obtain legal advice on such content.

(3) Examining the oil in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the legal principles on the admissibility of illegally collected evidence and the rules of evidence.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)