The judgment of the court below which acquitted the Defendant of the facts charged of this case is erroneous by misapprehending the legal principles or affecting the conclusion of the judgment.

2. Determination

A. Article 199(1) of the Criminal Procedure Act specifies the principle of voluntary investigation.

In the form of accompanying the suspect to the investigative agency, etc. in the form of obtaining consent from the investigative agency, there is no way to restrain the physical freedom of the suspect even though it is substantially similar to the arrest, and thus, it is not possible to guarantee the voluntary nature of the suspect systematically and practically through it, and there is a high possibility that there is a result contrary to the principles of criminal litigation, such as the provision of various rights guarantee devices granted to the suspect under detention by the Constitution and the Criminal Litigation Act on the grounds that it is prior to the regular arrest and detention phase.

Therefore, it is reasonable to view that the legality of accompanying is recognized only where an investigator knew that he/she could refuse accompanying the suspect prior to accompanying, or the suspect accompanied could freely leave the accompanying place at any time, and where it is clearly proven by objective circumstances that the accompanying was carried out by the suspect’s voluntary will (see, e.g., Supreme Court Decisions 2009Do6717, Jun. 30, 201; 2012Do8890, Sept. 13, 2012). Furthermore, the compulsory accompanying that was carried out without disregarding legitimate procedures, such as the reason for arresting the suspect and the notification of the right to appoint a counsel constitutes a typical illegal arrest, and that it was carried out under an illegal arrest.