Requirements for recognizing the legality of voluntary driving

Article 3(2) of the Act on the Performance of Duties by Police Officers, Article 199(1) of the Criminal Procedure Act

Supreme Court Decision 2005Do6810 Decided July 6, 2006 (Gong2006Ha, 1572) Supreme Court Decision 2009Do6717 Decided June 30, 201 (Gong2011Ha, 1552)

Defendant

Defendant

Law Firm Lee Jong-il, Attorney Jeong Chang-soo

Suwon District Court Decision 2012No1902 decided July 4, 2012

The appeal is dismissed.

The grounds of appeal are examined.

Article 199(1) of the Criminal Procedure Act explicitly provides for the principle of voluntary investigation. In the form of consent obtained by an investigator in the course of an investigation, accompanying a suspect to an investigative agency, etc. is not a way to suppress the suspect even though his/her physical freedom is restricted and is substantially similar to the arrest, and thus, it is not systematically and practically arbitable. Moreover, it is highly likely that such accompanying may result in a violation of the principle of the Criminal Procedure Act, such as not providing various rights guarantee devices granted to a suspect arrested and detained by the Constitution and the Criminal Procedure Act on the ground that it is prior to the regular stage of arrest and detention. Therefore, it is reasonable to deem that the legality of accompanying is recognized only where the investigator knew that the suspect could refuse accompanying of the suspect prior to the accompanying, or where it is clearly proved by objective circumstances that the suspect was accompanied to an investigative agency, etc. by his/her voluntary will, such as where it is possible to freely leave the suspect or to leave the accompanying place (see, e.g., Supreme Court Decision 2009Do6717, Jun. 30, 2011).

According to the reasoning of the judgment below, the court below found facts based on the evidence duly adopted and investigated, and determined that the defendant voluntarily committed the defendant's voluntary act by the defendant, based on the following circumstances: ① notified the defendant at any time at the time of accompanying the defendant to the police station that he could refuse to accompany the defendant at the time; ② the defendant was willinging to a police officer at the time of accompanying the defendant; ② the defendant responded to the order of accompanying without any special resistance; ③ although the defendant was under the influence of alcohol at the time of accompanying the police station, although the defendant was under the influence of alcohol, the police station after accompanying the accompanying refused to affix a written report on the state of the driver's situation, and the defendant's speech and behavior before and after accompanying the police station, such as stating that the defendant was sufficient enough to determine whether to comply with the police officer's voluntary request for accompanying the police officer at the time, and thus, the defendant's voluntary act was lawful.

In light of the above legal principles and records, the above determination by the court below is acceptable, and contrary to what is alleged in the grounds of appeal, there is no violation of the principle of free evaluation of evidence against logical and empirical rules.

Meanwhile, according to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, an appeal may be filed on the grounds of unfair sentencing. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the amount of punishment is unfair

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

Justices Lee Sang-hoon (Presiding Justice)