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The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.
Reasons
The grounds of appeal are examined (to the extent of supplement in case of supplemental statements in the grounds of appeal not timely filed).
1. (a) Article 199(1) of the Criminal Procedure Act provides that “The investigation may be conducted in order to achieve its purpose.”
Provided, That compulsory measures shall be taken only where otherwise provided for in this Act to the minimum extent necessary.
The principle of voluntary investigation is stipulated as "........."
In the form of accompanying an investigator to a criminal suspect in the course of an investigation by obtaining the consent of the party concerned, the physical freedom is restricted without a warrant and actually placed in a situation similar to the arrest. However, there is no way to restrain the accompanying having de facto coercion, and there is a lot of concern that autonomy is not guaranteed in reality as well as in reality.
Therefore, it is reasonable to view that the legality of an investigative agency is recognized only in cases where it is clearly proved by objective circumstances that an investigative agency had been accompanied by the voluntary will of the suspect solely, such as where the investigator knew that the suspect could refuse the accompanying of the suspect prior to the accompanying or the suspect accompanied could freely leave the accompanying place, etc., and that the suspect was accompanied by the investigative agency, etc., at any time (see Supreme Court Decision 2005Do6810, Jul. 6, 2006, etc.). Furthermore, even though the suspect expressed his/her intent to refuse accompanying, the police officer’s act of forcing the suspect to accompany the suspect without the warrant constitutes an illegal arrest by disregarding the procedures under the Criminal Procedure Act regarding compulsory measures under the investigation, and as such, the act of forcing the suspect without the warrant constitutes an illegal arrest.
If requested, urology;
illegal arrest for demand; and