[1] 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 illegally collected evidence can be exceptionally acknowledged, and the standard for determining whether it constitutes such evidence / Cases where the secondary evidence acquired based on illegally collected evidence can be exceptionally admitted

[2] In cases where a storage device or duplicate containing electronic information is reproduced, searched, and printed out to an investigation agency office, etc., whether search and seizure is legitimate in cases where an opportunity for participation is guaranteed to the person subject to seizure or his/her defense counsel and no appropriate measure is taken to prevent the arbitrary reproduction, etc. of digital information irrelevant to the suspected facts (negative)

[1] Article 308-2 of the Criminal Procedure Act provides that “Any evidence collected without following the due process shall not be admitted as evidence” under the title “excluding illegally collected evidence.” This is to stipulate the principle of exclusion of illegally collected evidence in order to realize the constitutional ideology of guaranteeing fundamental human rights of the people by preventing illegal acts in the investigation process, including illegal seizure and search, and by preventing recurrence.

Article 12 of the Constitution declares due process and warrant principles concerning search and seizure in order to guarantee fundamental human rights, and the Criminal Procedure Act establishes concrete standards for search and seizure procedures so that the ideology of identifying substantive truth and protecting individual rights can be realized 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, as well as evidence collected without following due process and secondary evidence obtained based on it are also secured without following due process established to guarantee fundamental human rights, and in principle, it shall not be deemed as evidence for conviction.

However, it does not conform to the purpose of the Constitution and the Criminal Procedure Act to deny the admissibility of evidence uniformly on the ground that it is evidence collected without following the procedure prescribed by the law. This is because the realization of legitimate penal authority through the discovery of substantive truth is an important goal and ideology that the Constitution and the Criminal Procedure Act intend to achieve through

In exceptional cases where an investigation agency’s procedural violation does not constitute a violation of the substantive substance of due process, and rather, the Constitution and the Criminal Procedure Act to exclude admissibility does not constitute a violation of the principle of due process and the substantive truth-finding and thereby bring about a result contrary to the intent of realizing criminal justice through the formulation of procedural provisions concerning criminal procedure, the court shall be deemed to be entitled to use the evidence as evidence of conviction. Whether such a violation is applicable ought to be determined by comprehensively and comprehensively taking into account all circumstances related to the procedural violation committed by the investigation agency in the process of collecting evidence, namely, the purport and degree of the procedural provision, the details and degree of the violation, specific details of the violation, the possibility of avoiding the violation, the right to protect the procedural provision, or the nature and degree of infringement of legal interests, the relationship between such right and legal interest, the relationship between the procedural violation and the defendant, the relationship between the procedural violation and the collection of evidence, and the perception and intent of the investigation agency. This legal doctrine also applies to secondary evidence obtained based on the evidence collected without following due process, and thus, can be deemed as exceptional cases where evidence is used as evidence comprehensively acknowledged and comprehensively.

[2] Articles 219 and 121 of the Criminal Procedure Act provide that “When an investigative agency executes a search and seizure warrant, the person subject to search and seizure or his/her defense counsel may participate in the execution thereof.” In cases where it is impossible to print out and copy a storage device by setting the scope in the process of search and seizure or where it is deemed that there are exceptional circumstances making it considerably difficult to achieve the purpose of search and seizure, and reproduction, search, and printing out a storage device containing digital information, hys, or other form (hereinafter “duplicates”) to an investigative agency, etc., the warrant principle and due process should be complied with, such as taking appropriate measures to guarantee the party subject to search and seizure or his/her defense counsel’s opportunity to participate in the search and seizure or to prevent arbitrary reproduction, etc. of digital information irrelevant to the suspected criminal facts. However, if the party subject to search and seizure did not take such measures, the search and seizure cannot be deemed lawful: Provided, That the same applies in cases where the investigation agency’s reproduction and printing of digital information cannot be deemed to have practically infringed the purport of participation of the search and seizure procedure.

[1] Article 12 of the Constitution of the Republic of Korea; Articles 307 and 308-2 of the Criminal Procedure Act / [2] Article 12 of the Constitution of the Republic of Korea; Articles 121, 215, 219, 307, and 308-2 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2007Do3061 Decided November 15, 2007 (Gong2007Ha, 1974) Supreme Court Decision 2008Do11437 Decided March 12, 2009 (Gong2009Sang, 900) Supreme Court Decision 2009Do10092 Decided January 28, 2010 (Gong2010Sang, 474), Supreme Court Decision 2010Do2094 Decided March 14, 2013 (Gong2013Sang, 688) / [2] Supreme Court Decision 2015Do12400 Decided September 21, 2017 (Gong2017Ha, 2033)

Defendant 1 and one other

Defendant 1 and Prosecutor

Law Firm et al.

Suwon District Court Decision 2018No4647 decided December 4, 2018

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the grounds of appeal by the prosecutor

Of the facts charged in the instant case, the lower court acquitted the Defendants on the ground that the Defendants’ violation of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”) and the occupational breach of trust against Defendant 1 constituted a case where there is no proof of criminal facts. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the crime of occupational breach of trust.

2. Judgment on Defendant 1’s grounds of appeal

A. Article 308-2 of the Criminal Procedure Act provides that “Any evidence collected without following the due process shall not be admitted as evidence” under the title “excluding illegally collected evidence.” This is to stipulate the principle of exclusion of illegally collected evidence in order to realize the constitutional ideology of guaranteeing the fundamental human rights of the people by suppressing the illegal act of an investigation process, including illegal search and seizure and preventing recurrence (see Supreme Court en banc Decision 2010Do2094, Mar. 14, 2013, etc.). The foregoing provision was pronounced prior to the introduction of the foregoing provision, see Supreme Court en banc Decision 2007Do3061, Nov. 15, 2007).

Article 12 of the Constitution declares due process and warrant principles concerning search and seizure in order to guarantee fundamental human rights, and the Criminal Procedure Act establishes concrete standards for search and seizure procedures so that the ideology of identifying substantive truth and protecting individual rights can be realized 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, as well as evidence collected without following due process and secondary evidence obtained based on it are also secured without following due process established to guarantee fundamental human rights, and in principle, it shall not be deemed as evidence for conviction.

However, it does not conform to the purpose of the Constitution and the Criminal Procedure Act to deny the admissibility of evidence uniformly on the ground that it is evidence collected without following the procedure prescribed by the law. This is because the realization of legitimate penal authority through the discovery of substantive truth is an important goal and ideology that the Constitution and the Criminal Procedure Act intend to achieve through

In exceptional cases where an investigation agency’s procedural violation does not constitute a violation of the substantive substance of due process, and rather, the Constitution and the Criminal Procedure Act (hereinafter referred to as “the Criminal Procedure Act”) to exclude admissibility of evidence does not constitute an infringement of the substantive substance of due process, and in exceptional cases where it is deemed that the Constitution and the Criminal Procedure Act establish a procedural provision on criminal procedure to harmonize the principle of due process with the discovery of substantive truth and thereby bring about a result contrary to the intent of realizing criminal justice, the court may use the evidence as evidence of conviction. The determination should be made by comprehensively and comprehensively taking into account all the circumstances related to the procedural violation committed by the investigation agency in the course of evidence collection, namely, the purport and degree of the procedural provision, specific violation, details and possibility of evasion, rights and legal interests to be protected, relationship between the rights and legal interests to be protected, relationship between the procedural violation and the defendant, and awareness and intent of the investigation agency. Thus, the aforementioned legal principle also applies to secondary evidence obtained based on the evidence collected without following due process, and thus, the court can also be held as evidence of guilt 2010.

Articles 219 and 121 of the Criminal Procedure Act provide that “When an investigative agency executes a search and seizure warrant, the person subject to search and seizure or his/her defense counsel may participate in the execution thereof.” In cases where it is impossible to print out or duplicate a storage device within a specified scope or where it is deemed that exceptional circumstances exist making it substantially difficult to achieve the purpose of search and seizure, and copies, searches, and output a storage device containing digital information to an investigative agency office, etc., the warrant principle and due process should be complied with, such as taking appropriate measures to guarantee the opportunity to participate in the search and seizure or his/her defense counsel, to prevent the arbitrary reproduction, etc. of digital information irrelevant to the suspected offense. If the search and seizure did not take such measures, it cannot be deemed lawful: Provided, That where the party subject to search and seizure explicitly expressed his/her intention not to participate in the above procedure or the process, or the purport of guaranteeing participation in the search and seizure procedure cannot be seen as having been substantially infringed in light of the nature and content of the process during which the search and seizure procedure was conducted, the same applies.

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following facts.

(1) On March 26, 2015, a warrant of search, seizure and verification issued by the Suwon District Court warrant officer (hereinafter “instant warrant”) includes the suspect’s name, name, crime, articles to be seized, place of search, body, goods to be searched, date of issuance, date of issuance, term of validity of the warrant, and the purport that the warrant shall not be executed after the lapse of the period, and shall not be executed after the lapse of the period, and the reasons for the search and seizure are stated, and the warrant may be returned. The signature and seal is affixed between the annexed sheet and the annexed sheet. However, the judge’s signature and seal is affixed only to the signature and seal, and there is no subsequent seal thereon.

(2) On May 16, 2015, the Gyeonggi Provincial Police Agency Foreign Affairs Agency’s external history and investigators Nonindicted 1 seized the copies of Nowon-do (NP905S3G-K04CN) and SDB’s reproduction by means of requisition in accordance with the instant warrant. During that process, Defendant 1 was involved in the reproduction site of Nowon-do and SD cards, and signed on the document verifying the piracy value of image files.

In each copy of the above digital information seized in accordance with the warrant of this case, the judicial police officer, who belongs to the Gyeonggi Provincial Police Agency, searched the digital information related to occupational breach of trust, which is a suspected criminal fact stated in the warrant, and then printed out the files, “(electronic name omitted)” in writing, etc. of the crime list 1, 2, and 3 of the judgment below, and prepared data related to criminal facts (Evidence No. 80; hereinafter “the file output of this case”).

On August 15, 2015, a judicial police officer, who belongs to the Gyeonggi Provincial Police Agency, presented the output of the instant file, which is part of the output, prepared a suspect interrogation protocol (No. 47 No. 5 of the evidence list) on suspicion of violation of the Unfair Competition Prevention Act against the suspect non-indicted 2.

(3) In the presence of Defendant 1’s defense counsel, the prosecutor drafted the first interrogation protocol of suspect interrogation (Evidence No. 57) on December 22, 2015, the second interrogation protocol of suspect interrogation (Evidence No. 58) on December 23, 2015, and the third interrogation protocol of suspect interrogation (Evidence No. 61) on January 5, 2016.

(4) In the first instance trial, Nonindicted Party 1 notified Defendant 1 of the right to participate in the process of searching and printing out information by seizing and copying the so-called Nopt North Korea and SD cards, etc. at the time of the execution of the instant warrant. Defendant 1 stated that “The aforementioned Nopt North Korea and SD cards were participating in the process of copying and printing the information.”

(5) The lower court acknowledged the admissibility of each of the legal statements made by Nonindicted 3, Nonindicted 4, Nonindicted 5, Nonindicted 2, and Nonindicted 6 (hereinafter “Nonindicted 3, etc.”) during the witness examination procedure, which was presented the files of this case to Defendant 1, the protocol of interrogation of Defendant 1 of the Prosecutor’s preparation, the protocol of interrogation of Nonindicted 2 of the police preparation, and each of the facts charged against Defendant 1’s violation of the Unfair Competition Prevention Act (hereinafter “Trade 3, etc.”) regarding the files of this case, and recognized the conviction of Defendant 1 as evidence of conviction.

C. (1) The warrant of search and seizure shall be signed and sealed by a judge who issues the warrant (Article 219 and Article 114(1) main text of the Criminal Procedure Act), stating the name and name of the suspect, the name of the crime, the articles to be seized, the place of search, the body, the goods to be searched, the date of issuance, the term of validity, the date of issuance, and other matters prescribed by the Supreme Court Regulations, and the purport that the warrant shall not be executed after the lapse of such period. The warrant of this case shall not be deemed to have been lawfully issued on the grounds that there

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the validity of the instant warrant solely on the grounds that the instant warrant was issued according to the genuine will of the judge.

(2) However, considering the aforementioned legal principles and the evidence duly admitted, comprehensively and comprehensively, the following circumstances revealed are deemed as evidence for conviction: (a) the instant file output seized in accordance with the instant warrant; (b) the protocol of interrogation of Defendant 1, the protocol of interrogation of Nonindicted 2, the protocol of interrogation of Nonindicted 3, etc. as to the police preparation; and (c) each legal statement, such as Nonindicted 3, etc., may be used as evidence for conviction.

(A) Inasmuch as the instant warrant has the name and seal of a judge who permits the execution at night, and the signature and seal of a judge in the signature and seal column, it is apparent that the warrant was issued in a genuine manner based on the judge’s intent. At that time, it is difficult to deem that there was a reasonable ground to believe that the warrant was lawfully issued, and that the investigation agency intentionally infringed the substantial content of due process, or carried out the search and seizure pursuant to the instant warrant with intent to avoid the warrant requirement.

(B) As seen in the above 2. A, denying the admissibility of evidence of the instant file based on the evidence collected by the investigative agency through illegal search and seizure and the secondary evidence obtained based thereon is the most effective and reliable response to restrain the investigative agency from abusing authority and preventing recurrence. However, in light of the content and form of the instant warrant, the details and details of issuance thereof, and the search and seizure process by the investigative agency, etc., it is difficult to deem that the investigative agency’s issuance of the instant warrant and the seizure of the instant file based on the instant warrant is practically infringing upon the purpose of attaining by denying the admissibility of illegally collected evidence.

(C) Defendant 1 directly participated in the reproduction site of the Nopt North Korea and SD card as above and verified the piracy value of the image reproduced files, and Defendant 1’s participation right was not guaranteed in the process of searching and printing the reproduction, or digital information irrelevant to the facts charged in the instant warrant cannot be deemed to have been searched and printed.

(D) Although the instant file output was collected based on a lawful warrant as above, it was obtained based on a warrant issued by a judge based on the judge’s determination that it is related to the facts charged, and such defect is adequate to prevent infringement of legal interests, such as Defendant 1’s fundamental guarantee of human rights. In the process of acquiring the instant file output, the content and degree of violation of procedural provisions cannot be deemed to have seriously infringed upon the rights or legal interests to protect the procedural provisions. Rather, excluding the admissibility of the instant file output that is highly related to the facts charged may result in a violation of the purpose of realizing criminal justice by promoting harmony between the principle of due process and substantial truth.

In short, even if the warrant of this case was not lawfully issued because it did not meet the requirements prescribed in the Criminal Procedure Act, it can be admitted as evidence of the output of the file of this case collected according to the warrant. Based on this, each of the secondary evidence obtained can also be admitted as evidence.

D. The lower court convicted Defendant 1 of this part of the facts charged. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Defendant 1 and the Prosecutor’s final appeal are all dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)