In a case where the Defendant was arrested as a flagrant offender by a police officer belonging to the subway station, after taking a flag of a female under his name using a mobile camera in subway stations, etc., and was prosecuted as a violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amera, etc.) after the Defendant was arrested as a flagrant offender by using a mobile camera in subway stations, etc., the case holding that the Defendant acquitted the Defendant on the grounds that the Defendant was not guilty, in case where the police officer conducted voluntary submission when he arrested a flagrant offender, a mobile phone device that was seized by a voluntary submission, and a video file, etc. reproduced and reproduced

The defendant, using the cell phone camera or stairs from the subway station, taken off 18 times in total, using the cell phone camera of mobile phone devices, was arrested as a flagrant offender by a police officer belonging to the subway investigation station, and was prosecuted as a violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Kamera, etc.) after the defendant was arrested as a flagrant offender by the police officer belonging to the subway investigation station. When the police officer arrests a flagrant offender, the defendant's cell phone devices seized in a voluntary submission method and the cell phone images and video files reproduced and printed out by searching the stored information and searching such stored information.

In light of the Supreme Court’s wide scope of search and seizure by voluntary submission of the suspect at the site of arrest, the search and seizure without a warrant under Article 218 of the Criminal Procedure Act should be interpreted as not permitted at the site of arrest in the act of crime because it is difficult in principle to expect the suspect immediately before arrest or prior to arrest to voluntarily submit the warrant. Although police officers seized the Defendant’s cell phone in accordance with Article 218 of the Criminal Procedure Act, they did not issue an ex post facto warrant; however, the police officers’ forced investigation into the cell phone machine or the Defendant’s voluntary submission of the evidence may not be acknowledged; however, the prosecutor’s exclusion cannot be recognized as admissibility of the seized cell phone machine; the guarantee of suspect participation procedure in an investigative agency (Articles 219 and 121 of the Criminal Procedure Act) is also guaranteed in the search and seizure of information storage device under Article 218 of the Criminal Procedure Act; thus, the police officers’ search and seizure without a warrant under Article 218 of the same Act should be conducted at the site of arrest and seizure, including voluntary submission of evidence and digital evidence.

Article 14(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 15977, Dec. 18, 2018); Articles 106(1) and (3), 121, 212, 216, 217, 218, 219, 308-2, and 325 of the Criminal Procedure Act

Defendant

Prosecutor

Kim Su-hee et al.

Attorney Jeong-hee

Suwon District Court Decision 2018 Godan3113 decided September 13, 2018

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment of innocence shall be published.

1. Summary of grounds for appeal;

Sentencing (in original instance: fine of KRW 7 million, 40 hours after completion of sexual assault treatment programs, confiscation, and 2 years of restriction on employment)

2. Ex officio determination

Article 59-3(1) and (2) of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018; hereinafter in force from June 12, 2019; hereinafter referred to as “Act on Welfare of Persons with Disabilities”) provides that an employment restriction order shall be issued simultaneously with a judgment on a sex offense case in which the court is unable to operate welfare facilities for a certain period of not more than 10 years, or to provide employment or actual labor to welfare facilities for persons with disabilities for a certain period of not more than 10 years, but where the risk of recidivism is considerably low, or where the court determines that there are other special circumstances where employment should not be restricted, such an employment restriction order may not be issued. However, Article 2 of the Addenda of the Act provides that Article 59-3 of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904) provides that the above amended Act also applies to persons who committed a sex offense before the enforcement

3. Conclusion

The judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the prosecutor's argument of unfair sentencing, and the judgment of the court below is reversed and it is again decided as follows.

[Grounds for multi-use Judgment]

1. Facts charged and summary of major evidence

A. Summary of the facts charged

Around 07:31 March 20, 2018, the Defendant taken pictures of the body of another person, who may cause sexual humiliation or sense of shame, using cell phone camera in the subway △△ Station, from the subway △△ Station, using mobile phone camera. In addition, the Defendant taken photographs of another person’s body, which may cause sexual humiliation or sense of shame, over 18 times in total, as shown in the list of crimes in the attached Table, from around that time to March 26, 2018, using a camera or other similar device with similar function.

B. Summary of major evidence

The evidence presented by the prosecutor is ① cellular phone (Evidence No. 1) seized by the police officer at his/her discretion when arresting an offender in the act of committing an offense, and the photograph of a video-facul-facul-facul-facul-facul-facul-facul-facing (Evidence No. 41) and a video file reproduced (Evidence No. 45 pages), ② the confession statement

2. Whether the procedure for seizure of the cell phone itself is lawful (negative)

(a) Permission of search and seizure due to voluntary submission other than emergency search and seizure when arresting an offender in the act of committing an offense;

1) The search and seizure provision without warrant under the Criminal Procedure Act

(1) A public prosecutor or judicial police officer may, if necessary, take the following measures where a suspect is arrested or detained pursuant to Article 20-2, 200-3, 201 or 212 of the Table contained in the main sentence:

2) Supreme Court precedents and problems

The Supreme Court held that even in cases where a prosecutor or a senior judicial police officer arrests a suspect in the act of committing an offense pursuant to Article 212 of the Criminal Procedure Act, seizure of articles left by a suspect, etc. or articles voluntarily submitted by an owner, possessor or keeper pursuant to Article 218 of the Criminal Procedure Act without a warrant, and in such cases, a prosecutor or a senior judicial police officer does not need to obtain a post facto warrant (see Supreme Court Decision 2015Do13726, Feb. 18, 201

As above, the Supreme Court permits search and seizure in the form of voluntary submission at the arrest site, while the seizure by voluntary submission of the suspect takes place extensively in the first instance practice, it is common that there is almost no urgent procedure for the urgent search and seizure procedure and the ex post facto warrant procedure for the seized articles (Article 309 of the Criminal Procedure Act (II). Since the investigative agency has an absolute superior position to the suspect who is arrested in the act of crime, it is difficult to expect the suspect to refuse voluntary submission. Thus, the ex post facto warrant system for the urgent seizure articles held by the arrested suspect is likely to be punished in the future.

However, the Supreme Court has ruled that the voluntariness of presenter is required in the seizure under Article 218 of the Criminal Procedure Act (see Supreme Court Decision 2013Do11233, Mar. 10, 2016). However, it is possible to control passive due process of law by excluding the admissibility of evidence with respect to the unartard seized articles.

(iii) review;

On the other hand, seizure articles under Article 218 of the Criminal Procedure Act are not returned even if the presenter withdraws his/her intention, so they constitute a compulsory disposition, and since the acquisition by possession is not forced, the Criminal Procedure Act allowed seizure without a warrant.

However, as a matter of principle, a criminal suspect who was already arrested or immediately before the arrest cannot expect a voluntary submission intention. There is little room to determine that the procedure submitted by the person subject to the arrest is not compulsory. For example, rather than a special place (e.g., a self-denunciation site), construing that the person intent to submit a document proving his/her responsibility for the crime to the criminal suspect at the general site of the arrest of the flagrant offender is likely to lose judicial trust contrary to the people’s concept. Even if the person subject to the arrest in the act of the criminal suspect voluntarily presented his/her opinion at will or voluntarily presented his/her opinion was drafted at the scene of the arrest in the act of the criminal suspect, it is reasonable to view that the procedure was based on the impact of the

The necessity of recognizing the search and seizure of voluntarily produced articles under Article 218 of the Criminal Procedure Act for a person subject to arrest does not include the omission of the ex post facto search and seizure warrant procedure under Article 217 of the Criminal Procedure Act.

Therefore, it should be interpreted that search and seizure without a warrant under Article 218 of the Criminal Procedure Act is not permitted at the site of arrest in the act of crime.

B. Probative value of the instant mobile phone itself (negative)

1) Reasons for seizure

According to the records, the following particulars can be recognized.

On March 26, 2018, 08:14, the judicial police officers belonging to the Seoul Metropolitan Police Agency were suspected to have taken the body of female passengers by cell phone, and the defendant was suspected to have taken the body of the female passengers by cell phone, and the defendant was set up with the defendant, presented his identification card and the reason for inspection, and tried to commit the crime.

○ The police officer, upon receiving a cell phone device from the denied Defendant, confirmed that female body photograph was not stored, but confirmed that female body photograph was not stored. Accordingly, it confirmed the recent implementation program, and attempted to recognize the Defendant’sless photograph display operation fact, and open the relevant photographer, but was temporarily set away. The Defendant demanded a password. The Defendant requested the password, and the police officer was finally released the password in the continued call, and the police officer conducted the seizure of the cell phone through the arrest of flagrant offenders and the voluntary submission.

On April 1, 2018, the police officer searched the cell phone storage information seized in the Seoul Metropolitan Police Agency, and printed out the images taken by the defendant and reproduced the video files into the CD.

2) Determination

A) The absence of admissibility due to the absence of a ex post facto warrant after voluntary submission

As examined above, the articles held by the suspect who was arrested in the act of crime cannot be seized without a warrant pursuant to Article 218 of the Criminal Procedure Act. Such interpretation contradicts the Supreme Court precedents seen earlier, but the warrant requirement principle is more faithful. A prosecutor or judicial police officer is issued a post warrant pursuant to Article 217 of the Criminal Procedure Act after urgent seizure of the articles of the arrested person who needs seizure pursuant to Article 216(1) of the Criminal Procedure Act. As such, such interpretation does not make it impossible for an investigative agency to search and seize the articles.

Therefore, even if an article was voluntarily produced at the place of arrest, if the article was deemed a seized article pursuant to Article 216(1) of the Criminal Procedure Act and was not issued within 48 hours after the request for an ex post facto warrant pursuant to Article 217(2) of the Criminal Procedure Act, the seized voluntarily produced article cannot be deemed as evidence of guilt.

Although the judicial police officers belonging to the subway stations seize the mobile phone apparatus of the defendant in accordance with Article 218 of the Criminal Procedure Act, their substance was seized in accordance with Article 216(1)2 of the Criminal Procedure Act and did not have an ex post facto warrant, the admissibility of the mobile phone apparatus cannot be acknowledged.

B) The absence of admissibility due to the absence of proof of the submission

According to the previous Supreme Court precedents, even if it is possible to seize voluntarily produced articles under Article 218 of the Criminal Procedure Act at the site of arrest in the act of committing an act of crime, it can be admitted as admissibility of evidence.Voluntaryness of the submission should be proved by the prosecutor, and the degree of proof should be able to be excluded from suspicion of substantial compulsory investigation.

In light of the foregoing, the police officer’s investigation, identification card, and cellular phone request for a police officer’s investigation, identification card, and cellular phone, which are the same as the one already arrested. ② On the other hand, the search of the information stored in a mobile phone was conducted first, and the arrest was conducted, and there was no perception or notification of the police officer on the procedure and effect of the search by voluntary submission, while the search of the information stored in a mobile phone was conducted first, it appears that there was no notification by the police officer on the procedure and effect of the search by voluntary submission. ③ Although the document does not require formal document by means of voluntary proof, the police officer is required to collect the document submitted voluntarily by the Defendant and deliver the certificate of search (Article 123(3) of the Criminal Investigation Rule). However,

In light of these circumstances, it is possible to suspect the absence of the police officer's forced investigation or the defendant's voluntary presentation intention, but there is no proof of the prosecutor's exclusion from this.

C) Conclusion

Therefore, the seized mobile phone itself cannot be admitted as evidence collected through legitimate procedures.

3. Whether the procedure for searching, copying, and printing the information on cell phone storage is legitimate (negative)

(a) Whether the suspect who was urgently seized pursuant to Article 216(1)2 of the Criminal Procedure Act can search information stored in his/her cell phone without a warrant when arresting an offender in the act of committing an act of crime (except for the case)

1) Issues

In recent years, without a separate search and seizure warrant, a prosecutor or judicial police officer searches for stored information by searching for stored information pursuant to Article 216(1) of the Criminal Procedure Act, even in the absence of a separate search and seizure warrant. However, in that the amount of information stored in a smartphone contains a large and sensitive information, the current investigation practice may considerably infringe on individual freedom. Therefore, even if a cell phone itself can be urgently seized in accordance with Article 216 of the Criminal Procedure Act, it is problematic whether the stored information can be searched and printed out and copied without a warrant. The instant case also depends on the fact that a judicial police officer searches the Defendant’s cell phone at the scene of the arrest of a flagrant offender to discover and seize the same image stored by searching for the Defendant’s cell phone at the scene of the arrest of a flagrant offender.

2) The conflict of views

In this regard, the following views can be established.

(1) Even if a cell phone is urgently seized from an arrested suspect pursuant to Article 216 of the Criminal Procedure Act that recognized the exception to warrant requirement requirement, the opinion that search and seizure of the cell phone stored information without warrant is not allowed in light of the quantity and quality of information inherent in the cell phone

[The Supreme Court Decision 2014 DAVID RoEALY V. CALIFRNA [ early, “whether search and seizure of mobile phones without a prior warrant is permitted”, No. 3 (No. 3, 2016), and 227 of the East Asia Research Act];

② Opinion that is generally permitted pursuant to Article 216(1) of the Criminal Procedure Act because there is no special restriction provision.

③ Although it is not permitted in principle, it is exceptionally permitted to search only cases opened at the time of seizure.

(iii) review;

Search and seizure of information on cell phone storage requires urgent prevention of destruction of evidence or collection of evidence (not lack of urgency), and search and seizure of information on cell phone storage containing enormous quantity of sensitive personal information infringes on an individual's privacy and the freedom of confidentiality (non-effortness). Thus, search and seizure of information stored in a cell phone requires prior warrant. However, in exceptional cases where there is urgency under the Criminal Procedure Act, search and seizure of information stored in a cell phone should be interpreted that search and seizure without a warrant for storage information can be possible if the arrested suspect sends letters to his accomplice or keeps information on the location of the victim, for example, if the arrested suspect sends to explosion or he keeps information on the location of the victim, and the digital information collected therefrom also is admissible (e.g. early, this paper, 238 pages).

B. Whether participation right should be guaranteed in the process of searching, printing, and copying stored information stored in a cellular phone that was seized in a voluntary production form pursuant to Article 218 of the Criminal Procedure Act when arresting an offender in the act of committing an offense (affirmative)

1) Issues

Even if it is lawful in the form of voluntary submission of the family mobile phone itself, it is problematic whether an investigative agency can independently search stored information and guarantee the right to participate in the suspect, etc. without it.

In this case, the police officer seized the Defendant’s mobile phone on March 26, 2018 in accordance with Article 218 of the Criminal Procedure Act. On April 1, 2018, the police officer extracted evidence by means of moving the mobile phone to the subway Police Agency and printing out the images stored by re-exploiting the cell phone in a flosion photo and copying the video file. There was no notice of the Defendant’s participation, and there was no delivery of the file list specifying the file list.

2) Prosecutor’s opinion

In regard to this, the prosecutor asserts that “the procedure of participation under Articles 219 and 121 of the Criminal Procedure Act is recognized only for the execution of a warrant of search and seizure issued, and there is no room for a prosecutor to grant participation in the storage device seized by voluntary production after the completion of the seizure procedure at the time of voluntary submission,” and cited the following cases as evidence admissibility of evidence collected without the participation procedure in the digital evidence analysis process voluntarily produced.

Seoul High Court Decision 2016No627 decided May 24, 2017 (Dismissal of Appeal)

Seoul Western District Court Decision 2017No1029 Decided May 10, 2018 (Dismissal of Appeal)

3) Determination

A) Nature of mobile phone information storage device

A mobile phone constitutes a data storage medium, etc. containing fluids and digital information, which are the tools of a crime (see Supreme Court Decision 2013Do71010, Jan. 6, 2014). In principle, where a data storage medium, etc. is subject to seizure, seizure is conducted by setting the scope of memory and printing out and copying the data (Articles 219 and 106(3) of the Criminal Procedure Act).

Meanwhile, the guarantee of criminal suspect participation procedures in search and seizure by an investigative agency (Articles 219 and 121 of the Criminal Procedure Act) is the core of meeting due process requirements as well as related requirements (Articles 219 and 106(1)). Therefore, the guarantee of criminal suspect participation procedures should be guaranteed as a matter of course in the search and seizure of information storage media pursuant to Article 218 of the Criminal Procedure Act. Considering the enormous and sensitiveness of personal information stored in a cellular phone, such need is double. Whether a cell phone is seized by the execution of a warrant of search and seizure or by voluntary submission is not distinguishable.

In other words, even if a mobile phone is voluntarily produced, if the search for stored information and the extraction of evidence are conducted, the search and seizure procedure continues not to be completed at the time of submission of the mobile phone but to the search and seizure process, so the principle of due process, such as the guarantee of participation and relation requirements, should be observed.

In addition, the current provisions of Paragraph (b) above guarantee the participation procedure with respect to the collection of electronically produced digital data. In this regard, the aforementioned prosecutor's argument cannot be accepted.

B) Ensuring the procedure of participation in the collection of digital evidence of information storage device, etc. confiscated by voluntary production

(1) Where an investigator seizes digital data at the site of seizure, search or inspection, he/she shall do so by printing out or reproducing it to the extent he/she deems to be related to a crime. (2) Where it is impossible or considerably difficult to do so at the site of seizure, search or inspection, the investigator may obtain copies of the digital storage medium and then seize digital data in accordance with paragraph (1). (3) Where the method provided in paragraphs (1) and (2) is impossible or considerably difficult to do so at the site of seizure, the investigator may seize digital data in the manner provided in paragraphs (1) and (2). (4) Where the investigator seizes digital data at his/her own discretion pursuant to paragraphs (1) through (3), he/she may seize the digital storage medium by removing the original digital storage medium to the outside or by means of paragraph (1) or (2).

C)Review

Where a judicial police officer voluntarily submits a mobile phone itself, he/she shall perform procedures, such as the requisition of a voluntary submission, preparation of a seizure record, issuance of a seizure list (Article 13(3) of the Rules on the Collection, Handling, etc. of Digital Evidence; Article 123 of the Criminal Investigation Rules); furthermore, in cases of seizing stored information stored in a voluntarily produced mobile phone, he/she shall guarantee the right to participate of the person subject to seizure, etc. during the search and extraction process (Articles 13(1) and 11(4) of the Rules on the Collection, Handling, etc. of Digital Evidence).

However, the police officer of the Seoul National Police Agency did not comply with the aforementioned procedure when searching for a mobile phone on April 1, 2018. Therefore, the video photographs printed out by the police officer from the cell phone to the cell phone and video files reproduced into CDs are not evidence collected by due process, and thus cannot be admitted as evidence of guilt.

4. Conclusion

Therefore, since the evidence on the facts charged is not evidence pursuant to Article 308-2 of the Criminal Procedure Act, the defendant's case is deemed to have no proof of the prosecutor on the facts of crime. Therefore, the defendant's case shall be acquitted by the latter part of Article 325 of the Criminal Procedure Act, and the summary of the decision shall be announced in accordance with Article 58 (2)

[Attachment] Crime List: Omitted

Judge Oi-su (Presiding Judge)