(영문) 대법원 2020.4.16.자 2019모3526 결정

1. The court below held that "the investigative agency presented the warrant to the re-appellant at the time of seizure of the mobile phone, etc. of the re-appellant (hereinafter "the seizure disposition of this case"). The re-appellant requested specific confirmation of the warrant, and thereafter, the defense counsel of the re-appellant was confirmed the warrant while participating in the investigation of the re-appellant. It is difficult for the investigation agency to consider that the search and seizure warrant was not presented or not presented even if the investigation agency did not show the part of the criminal facts stated in the warrant in the seizure disposition of this case."

2. However, it is difficult to accept the judgment of the court below as above for the following reasons.

A. The main text of Article 12(3) of the Constitution of the Republic of Korea and Articles 219 and 118 of the Criminal Procedure Act provide that “When a search and seizure warrant is executed by an investigative agency, a warrant of search and seizure shall be presented to the person subject to the disposition.” In addition, Articles 219 and 114(1) main text of the Criminal Procedure Act and Article 58 of the Criminal Procedure Rule provide that the warrant of search and seizure shall include the name of the suspect, name of the crime, place of seizure, articles to be searched, body, articles to be searched, date of issuance, period of validity, grounds for search and seizure, etc.

The purpose of the search and seizure is to minimize the infringement of privacy and property rights by ensuring that only the goods, places, and bodies listed in the search and seizure warrant are searched and searched along with the procedural guarantee of attention to the warrant, and to ensure that the opportunity of appeal by the person subject to the search and seizure, such as quasi-appeal, is substantially guaranteed.

In full view of the foregoing relevant provisions and the legislative purport of the system for presenting warrants, an investigative agency that executes a search and seizure warrant shall verify the fact that the search and seizure warrant is conducted by a judge based on a warrant issued by a judge and at the same time, present a search and seizure warrant so that the Criminal Procedure Act provides that the person subject to the search and seizure shall enter the search and seizure warrant as necessary, or that it may sufficiently know matters integrated with the search and seizure warrant (see, e.g., Supreme Court Decision 2015Do12400, Sept. 21, 2017).

B. According to the lower court’s finding of the facts, it appears that the lower court did not show the contents of the search and seizure warrant even though it was required by the re-appellant to verify the specific contents of the warrant at the time of the instant search and seizure disposition. Thus, in light of the aforementioned legal doctrine, it is difficult to recognize a legitimate presentation of a search and seizure warrant under Articles 219 and 118 of the Criminal Procedure Act. Therefore, the lower court should determine whether the investigative agency at the time of the instant search and seizure disposition satisfies the above requirements and presented

Nevertheless, the court below held that the seizure disposition of this case was not unlawful solely on the basis of the foregoing circumstances, and such judgment below erred by violating the relevant provisions of the Constitution and the Criminal Procedure Act.

3. Therefore, the lower judgment is reversed and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

April 16, 2020