[2] The case holding that although a detention warrant was not presented at the time of execution of the detention warrant, the evidence of the defendant's statement collected during the detention can be used as evidence of conviction

[2] The case holding that if the defendant's statement in the court of first instance among the evidence of the defendant's statement collected during the detention without presenting a warrant of detention in advance was presented at the time of the examination of legality of the procedure for execution of detention, by asserting the illegality of the procedure for execution of detention, and the defendant's statement in the court of first instance was presented at the time of the examination of legality of the procedure for execution of detention, and thereafter, it seems that he was aware of the facts constituting the crime stated in the warrant of detention. After the detention, only the illegality of the procedure for execution of detention was disputed through the examination of legality of detention and the request for release on bail from the court below, and it did not dispute at all the discretion or credibility of the evidence during the detention, and all the facts charged

1. As to the statement evidence of the defendant collected during the arrest without prior presentation of the warrant of detention

A. 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.” In principle, not only the evidence collected by the investigative agency but also the secondary evidence obtained on the basis thereof shall not be admitted as evidence for conviction.

However, in exceptional cases where a violation of the procedure by an investigative agency does not constitute a violation of the substantive contents of due process, and rather, the Constitution and the Criminal Procedure Act to exclude admissibility of the relevant evidence does not constitute a violation of the substantive contents of due process. Rather, the Constitution and the Criminal Procedure Act establish a procedural provision regarding criminal procedure to harmonize the principle of due process and substantive truth-finding, thereby creating a result contrary to the intent of realizing criminal justice, the court may use such evidence as evidence for conviction. Therefore, when a court finally determines admissibility of the secondary evidence, it should first consider all circumstances related to the collection of evidence, namely, the purport and content of the procedural provision and its degree of violation, namely, the specific details and possibility of violation, the degree of violation, the nature of the right to protect the procedural provision or legal interest, the degree of relationship between the defendant and the collection of evidence, and the perception and intent of the investigative agency, based on the primary evidence, as a whole, the causal relationship or dilution and comprehensive consideration should be given to all further specific circumstances arising in the process of collecting the secondary evidence (see, e.g., Supreme Court en banc Decision 201307Do13617.

In a case where an investigative agency executes a detention warrant without presenting a warrant against Article 12(3) of the Constitution, Articles 85(1) and 209 of the Criminal Procedure Act, and without presenting a warrant in advance, whether the secondary evidence, which is the secondary evidence collected during the detention, can be used as evidence for conviction should also be determined in accordance with the above legal principles. This also applies to cases where a prison officer executes a detention warrant under the direction of a prosecutor pursuant to Articles 81(3) and 209 of the Criminal Procedure Act.

B. According to the records, the defendant was arrested on June 25, 2008 under a warrant of arrest on or around 08:38, and was transferred to the prosecutor's office of Suwon District Prosecutors' Office on or around 11:00 the same day, and was detained in the detention house on or around 00:40 on June 26, 2008; the detention warrant was issued on June 27, 2008; the above detention warrant was executed by the officer at the detention warrant on or around 23:10 on the same day; the third examination protocol of the defendant was prepared by the prosecutor on July 1, 2008; the defendant was prepared on or after the date of interrogation of the suspect's interrogation of the defendant on July 7, 2008; the defendant presented the suspect's interrogation protocol prepared by the prosecutor on July 11, 2008; and the defendant did not appear to have been examined by the defense counsel on the grounds for denial of the suspect's interrogation protocol prepared by the prosecutor on July 28, 208.

Examining the above facts in light of the legal principles as seen earlier, if a warrant of detention was not presented in advance at the time of executing the warrant of detention against the defendant, it is a principle that the execution of detention in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act is conducted, and the third or sixth protocol of examination of the suspect's interrogation of the defendant and the defendant's statement in court cannot be used as evidence for conviction unless exceptional circumstances exist. Furthermore, immediately after the detention, if the defendant raised a dispute over the illegality in the procedure of detention, such as requesting the court's review of legality of detention, claiming that the defendant was detained without prior presentation of the above warrant of detention, and claiming a release on bail at the court of first instance, the court below should have examined whether the above defendant's assertion was unlawful in the course of executing the warrant of detention against the defendant, and further examined whether the above evidence can be used as evidence for conviction. Nevertheless, the court below acknowledged the defendant's preparation of the prosecutor's protocol, interrogation protocol, and evidence admissibility of each of the defendant's statement in the court of first instance and maintained the judgment below's conviction.

However, the defendant's statement at the court of first instance, however, constitutes a case where it is possible to use it as evidence for conviction in light of the legal principles or overall and comprehensive consideration of the following facts revealed in the above facts. In other words, the defendant, upon receipt of a detention warrant at the time of the examination of legality of detention, appears to have been aware of the facts constituting the crime stated in the detention warrant. After the detention, the defendant only argued the illegality of the procedure for execution of detention which was not presented in advance through the examination of legality of detention and the request for release on bail after the detention, and did not dispute all the defendant's testimony or credibility at the court. After the detention, the examination of legality of detention and the examination of the defendant's statement at the court of first instance, which is the defendant's statement made in the detention, did not dispute all the defendant's testimony or credibility of the defendant's statement at the court of first instance. After the detention, the court of first instance changed the attitude that only part of the facts charged in this case was presented after the examination of legality of detention, and did not reverse the attitude of confession.

As such, even in the case of the evidence duly admitted by the court of first instance, such as the Defendant’s statement in the court of first instance, which is admissible as evidence, it is sufficient to acknowledge all the criminal facts of this case. The court of first instance recognized the Defendant guilty of all the charges of this case, and the court below’s measure maintaining such judgment of the court of first instance is justifiable. Thus, the lower court’s error

2. As to the remaining grounds of appeal

According to the court below's decision and the evidence duly admitted by the court below, the court below's decision that affirmed the first instance court's judgment convicting the defendant of all the charges of this case is just, and there is no error in the misapprehension of legal principles, such as errors in law and admissibility of evidence collected through unlawful

3. Conclusion

Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)