[1] The meaning of “voluntary urology” / The requirements for allowing forced urology for the purpose of collecting criminal evidence by an investigative agency and the method of urology

[2] Whether an investigative agency may make a “disposition necessary for appraisal” to collect criminal evidence without the suspect’s consent for the purpose of collecting criminal evidence (affirmative), and whether it can be made by means of search and seizure (affirmative)

[3] In a case where: (a) the Defendant issued a warrant of seizure, search, and verification on the Defendant’s urine (30C), hair (80c), and the illegal use tool for narcotics, etc.; (b) the police officer searched the Defendant’s residence and seizes four injection equipment with scams and scams; and (c) the Defendant continued to refuse the search and seizure of 3 hours under the above warrant; and (d) the Defendant had an emergency medical technician collect urines (30c) from the Defendant’s body to take urines (30c) and forced him to take me from the Defendant’s body, the case affirming the judgment below holding that the execution of the warrant of seizure of urines was lawful

[1] In a case where a criminal suspect’s voluntary urology does not submit a urology, compulsory urology is an act of inserting the urology into the body through the urology of the criminal suspect and discharging the urology through the urology, thereby acquiring and keeping the urology. In such a case, compulsory urology for the purpose of the investigation agency to collect criminal evidence not only entails a direct action on the body of the criminal suspect, but also may cause physical pain or harm to the criminal suspect or cause a sense of shame or humiliation. Therefore, it is necessary to secure urology from the suspect’s body to collect criminal evidence, whether it is necessary to obtain urology from the suspect’s body through urology analysis, and whether it is difficult to prove urology by any other means than urology, it should be deemed that the urology is permitted by the last legitimate procedure in cases where forced urology is deemed inevitable. In such a case, a doctor, nurse, and other medical personnel, etc. should have the suspect take urology and health facilities suitable for collecting urology equipment and facilities.

[2] An investigative agency’s gathering of a suspect’s defense without the consent of the suspect for the purpose of collecting criminal evidence can be deemed as “necessary disposition for appraisal” under Articles 221-4(1) and 173(1) of the Criminal Procedure Act with the permission of appraisal obtained from the court (where it is necessary to detain the suspect at a hospital, etc., a warrant of confinement for appraisal shall be obtained from the court pursuant to Article 221-3 of the Criminal Procedure Act). However, seizure and search under Articles 219, 106(1) and 109 of the Criminal Procedure Act may also be conducted by means of seizure and search under Articles 219, 106(1) and 109 of the Criminal Procedure Act. In principle, an investigative agency should obtain and execute a warrant of search and seizure lawfully from a judge

Notwithstanding the efforts of the investigative agency to secure the urine of the suspect, who is the subject matter of seizure, in the event that there are circumstances in which the suspect does not consent to moving to an appropriate place, such as an emergency room at a nearby hospital, or cannot expect voluntary operation, such as resistance, etc., the investigative agency is allowed to exercise the minimum tangible power necessary to leave the suspect to a place suitable for recovery of the urine. This ought to be deemed as “necessary disposition for the execution of a warrant of seizure and of search” under Articles 219 and 120(1) of the Criminal Procedure Act. In addition, the same is because there is no way to achieve the purpose of a warrant of seizure because it is impossible for the suspect to receive urology without force in accordance with the procedure prepared to minimize the suspect’s desire for urology, with the statement of risk to harm the body and health of the suspect, and

[3] In a case where: (a) the Defendant was issued with a warrant of seizure, search, and inspection of the Defendant’s 30C, hair (80c), and illegal use of narcotics; (b) the police officer searched the Defendant’s residence; and (c) the Defendant continued to refuse to use 3 hours pursuant to the above warrant; (d) the Defendant’s refusal to use 3 hours of dives and hair; and (e) had an emergency clinic collect dives from the body of the Defendant for an emergency hospital (30c), and it was found that a serious and objective fact-based crime was committed against the Defendant; and (e) the lower court deemed that it was difficult for the police officer to lawfully refuse to use dives of the Defendant’s dives and dives to obtain dives from the police officer to obtain dives from the Defendant’s body during the process of executing dives and dives from the Defendant’s body; and (e) it was difficult for the police officer to obtain dives from the police officer’s body from the Defendant.

[1] Articles 106(1), 109, 120(1), 173(1), 215, 219, and 221-4 of the Criminal Procedure Act / [2] Articles 106(1), 109, 120(1), 173(1), 215, 219, 221-3, and 221-4 of the Criminal Procedure Act / [3] Articles 2 subparag. 3(b), 4(1)1, and 60(1)2 of the Narcotics Control Act; Articles 106(1), 109, 120(1), 215, 219, 219, 221-2(1), and 221-4 of the Criminal Procedure Act

[2] Supreme Court Decision 2011Do15258 Decided November 15, 2012 (Gong2012Ha, 2077)

Defendant

Defendant

Attorney Senior Professor

Busan District Court Decision 2017No4648 Decided April 13, 2018

The appeal is dismissed.

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

1. Compulsory urology is a criminal suspect’s act of inserting the urology into the body through the urology with force on the suspect when the suspect does not voluntarily submit urology. It is an act of acquiring and storing urology by releasing the urology into the body through the urology. In such cases, compulsory urology conducted by the investigative agency for the purpose of collecting criminal evidence not only entails a direct action on the body of the suspect, but also may cause physical pain or disability to the suspect or cause a sense of shame or humiliation to the suspect. Therefore, it is necessary to secure urology from the suspect’s body to collect criminal evidence, whether it is necessary to obtain urology from the suspect’s body through the urology analysis, and whether it is difficult to prove urology by any other means than urology, it is necessary to enter the suspect’s body and body as the last resort in cases where forced urology is deemed inevitable according to due process. In such cases, a doctor, nurse, other medical personnel, etc. must have the suspect and urine facilities suitable for collecting urology.

In order for an investigative agency to collect criminal evidence, collecting a suspect's defense without the consent of the suspect can be deemed as "necessary disposition for appraisal" as provided by Articles 221-4(1) and 173(1) of the Criminal Procedure Act with the permission of appraisal from the court (where it is necessary to detain the suspect at a hospital, etc., it shall be subject to a court's custody warrant pursuant to Article 221-3 of the Criminal Procedure Act). However, seizure and search pursuant to Articles 219, 106(1) and 109 of the Criminal Procedure Act may also be conducted by means of seizure and search pursuant to Articles 219, 106(1) and 109 of the Criminal Procedure Act. In this case, in principle, an investigative agency should obtain a warrant of search and seizure from a

Notwithstanding the efforts of the investigative agency to secure the urine of the suspect, who is the subject matter of seizure, in the event that there are circumstances in which the suspect does not consent to moving to an appropriate place, such as an emergency room at a nearby hospital, or cannot expect voluntary operation, such as resistance, etc., the investigative agency is allowed to exercise the minimum tangible power necessary to leave the suspect to a place suitable for recovery of the urine. This ought to be deemed as “necessary disposition for the execution of a warrant of seizure and of search” under Articles 219 and 120(1) of the Criminal Procedure Act. In addition, the same is because there is no way to achieve the purpose of a warrant of seizure because it is impossible for the suspect to receive urology without force in accordance with the procedure prepared to minimize the suspect’s desire for urology, with the statement of risk to harm the body and health of the suspect, and

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

A. A prosecutor belonging to the Busan District Prosecutors’ Office, upon request by the police officers belonging to the Busan District Police Agency, requested a warrant of seizure, search, and inspection to the Busan District Court on August 10, 2017, based on the information that the Defendant administered the Mecopon (hereinafter “Mecopon”), and issued a warrant of seizure, search, and inspection (hereinafter “instant warrant”) regarding the suspected violation of the Narcotics Control Act from the judge in charge of warrant on August 10, 2017. The term “goods to be seized” in the instant warrant includes “the suspect’s lawsuit, approximately 30C, and approximately 80, tools for illegal use of narcotics, etc.,” and the term “place for search and inspection” includes “the actual dwelling place of the suspect [the address (type omitted).” The Defendant may be punished only once due to a violation of the Narcotics Control Act due to Mecopon medication.”

B. On August 28, 2017, around 11:10, the police officer presented the instant warrant to the Defendant in Busan Shipping Daegu ( Address omitted) and seized four injection carriers who searched their residence and used them as evidence.

C. The police officer demanded the Defendant to submit the defense and hair to the Defendant in accordance with the instant warrant, but the Defendant was able to take a bath and to fully refuse the Defendant. However, the police officer took three-hour time to view the Defendant, but the police officer continued to refuse the refusal, and led the Defendant to the emergency room of the ○○ Medical Center after suppressing the defect of the Defendant’s self-harm, and forced the Defendant to take the ○○ Medical Center to go to the emergency room.

D. As the Defendant refused to voluntarily submit a urine in an emergency room of the ○○ Medical Center, the police officer, around 15:30 on the same day, had an emergency medical technician take 30 cc from the Defendant’s body and seize it. As a result of the inspection of the seized urine by simple reagents (MET), the response of philophone training has occurred.

3. We examine the above facts in light of the legal principles as seen earlier.

It may be deemed that there was a clear suspicion of a crime based on significant and objective facts against the Defendant. Despite the awareness of the police officer’s long time, the Defendant refused to voluntarily submit his/her defense, and resisted against the execution of a warrant of seizure lawfully issued by the judge. In determining that it is difficult to achieve the purpose of investigation by any other means, the police officer, based on other means, forced the Defendant to take back the Defendant into an emergency room at a nearby hospital, which is an appropriate place for collecting the defenses of the Defendant, and forced the emergency medical technician to take the defenses from the body of the Defendant, and did not go beyond the minimum necessary to exercise the force against the Defendant in the process. Such measures taken by the police officer are permissible as “necessary disposition for the execution of a warrant of seizure” as stipulated in Articles 219 and 120(1) of the Criminal Procedure Act.

According to Articles 10(1) and 10-2(1)2, 3, and 10-2(2) of the Act on the Performance of Duties by Police Officers, if there are reasonable grounds deemed necessary for the police officer to defend and protect his/her or another person’s life and body in the course of performing his/her duties, and to restrain resistance to the performance of official duties, the police officer may use police gear, such as locks, ropes, ropes, police clubs, shields, etc. to the extent necessary based on the reasonable judgment of the situation. To enforce a seizure warrant in this case, it is legitimate for police officers to take the defendant into an emergency room for the enforcement of a seizure warrant into the ○○ Medical Center, and to use locks and ropes in order to prevent danger by self-harm as the use of police gear permitted by the Act on the Performance of Duties by Police Officers.

In the same purport, the lower court did not err in its judgment that the execution of a warrant of seizure against the Defendant’s defense was lawful, contrary to what is alleged in the grounds of appeal, by misapprehending the legal doctrine regarding the execution of a warrant of seizure beyond the bounds of the principle

4. According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal may be filed on the ground of unfair sentencing only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Therefore, in this case where a more minor sentence has been imposed on the Defendant, the allegation that the sentence is too unreasonable is

5. The Defendant’s appeal is without merit and thus dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)