[1] Whether a prosecutor can search and seize as a forced investigation after an indictment was instituted (negative)

[2] In a case where a prosecutor obtained a search and seizure warrant from a judge other than the court of the lawsuit after the sixth trial date of the court below and conducted a search and seizure, the case holding that the list of transactions of the self-reliance deposit secured thereby cannot be used as evidence for conviction since it was collected without due process

[1] The Criminal Procedure Act provides for the search and seizure in the investigation procedure and the search and seizure in the trial procedure. On the basis of the system of our criminal procedure, once a public prosecution is instituted, all the authority of the criminal procedure including the compulsory disposition shall belong to the court of the lawsuit where the case is presided over, and the suspect who is the subject of the investigation shall have the status of the defendant in an equal relationship with the prosecutor in the criminal procedure, and thus, the defendant shall not be treated equally with the suspect. In essence, the compulsory disposition that affects the fundamental human rights of the defendant, in principle, must be based on the direct judgment of the court of the lawsuit that exercises jurisdiction over the individual litigation. Therefore, Article 215 of the Criminal Procedure Act, which leads to the principle of warrant requirement under the Constitution, does not explicitly limit the time when the public prosecutor can request the search and seizure warrant before prosecution. However, once a public prosecution is instituted on the grounds of the above procedure under the Constitution and the Criminal Procedure Act, the public prosecutor shall not conduct the search and seizure as a compulsory investigation.

[2] In a case where a prosecutor obtained a search and seizure warrant from a judge other than the court of the lawsuit after the sixth trial date of the court below and conducted a search and seizure, the case holding that the list of transactions of the self-reliance deposit secured thereby cannot be used as evidence for conviction since it was collected without due process

[1] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 215 and 307 of the Criminal Procedure Act / [2] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 215 and 307 of the Criminal Procedure Act

[2] Supreme Court en banc Decision 2007Do3061 Decided November 15, 2007 (Gong2007Ha, 1974) Supreme Court Decision 2008Do11437 Decided March 12, 2009 (Gong2009Sang, 900)

Defendant 1 and one other

Defendants and Prosecutor

Long-term Management

Law Firm Maisung, Attorney Masung-si

Suwon District Court Decision 2007Ra1233 decided Nov. 20, 2008

All appeals filed by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants

(1) misunderstanding of facts or misapprehension of legal principles

The time when the Defendants received two copies of the check of this case (the No. 1 and No. 2 omitted) from May 2002 to June of the same year. The court below found the Defendants guilty, based on Non-Indicted 2’s statements without credibility, based on the judgment of the court below, for the period from March 2002 to April 2002. Defendant 1 did not have any unfair act of duties concerning Defendant 2’s business before receiving the said check. Defendant 1 was promoted to the agency at the time of receiving the said check, and had been engaged in the same state distribution transaction as not competition with the Fair Trade Commission competition. Thus, Defendant 2 did not have an impact on Defendant 2’s business. Since the said check was sent and received with Defendant 1’s promotion congratulatory money, the court below erred by misapprehending the facts or by misapprehending the legal principles on the crime of acceptance of bribe or the crime of offering of bribe, which affected the conclusion of the judgment.

(2) Unreasonable sentencing

Even if the conviction against the Defendants is recognized, in light of the following: (a) Defendant 1 has faithfully performed his duties and contributed to the development of the Fair Trade Act; (b) the amount received as a bribe was small; and (c) considerable time has passed since the time of the commission of the instant crime; and (b) Defendant 1 has no record of punishment and there has no record of punishment in addition to the fine twice, Defendant 2 has been punished (Defendant 1: 4: suspended sentence for 1 year; (b) additional collection for 2 million won; and (c) Defendant 2 is too unreasonable.

B. Public prosecutor (misunderstanding of legal principles as to acquittal in the reasoning)

If a prosecutor cannot conduct a search and seizure after prosecution and can secure physical evidence only through fact-finding procedures, the latter part of Article 12(1) and Article 12(3) of the Constitution that declares due process of search and seizure and warrant requirement as well as the purport of Article 12(3) of the Constitution that declares due process of search and seizure and the provision on search and seizure of the Criminal Procedure Act may be unreasonable, and thus, a prosecutor may conduct a search and seizure after obtaining a warrant from the court. In this case, even though the prosecutor lawfully obtained the above warrant from the court after obtaining the warrant from the court, the court's own decision denying admissibility of evidence and it is erroneous in the misapprehension of legal principles as to search and seizure and seizure, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. Judgment on the misunderstanding of facts or misapprehension of legal principles by the Defendants

According to the evidence duly adopted and examined by the court below, Defendant 1 was assigned two copies of the cashier’s checks (one million won check number, two omitted, all of which were issued on March 26, 2002 at the large number of 200, and one million won, and the two copies of the cashier’s checks (the check number No. 1, two omitted) as indicated in the judgment of the court below among the police officers from March 2002 to April 2002 who were aware of the fact that Defendant 1 was in charge of reporting unfair trade practices with respect to the non-indicted 1 Co., Ltd. (the non-indicted Co., Ltd. in the judgment of the court below) from March 200 to March 202, and received a bribe in relation to his duties. Defendant 2 can be sufficiently recognized that he provided a bribe to Defendant 1 in relation to his duties by issuing two cashier’s checks as above.

On the other hand, the crime of bribery is a legal interest protected by the law in the process of performing duties of a public official, the trust in the society, and the non-purchase of the act of performing duties. Since the bribery does not require a solicitation or an unlawful act, there is no special solicitation in recognizing the bribery of money and valuables received, it is sufficient that money and valuables were received in relation to his duties, and there is no need for an individual act or a quid pro quo relationship. When a public official receives money and valuables or other benefits from a person subject to his duties, it cannot be deemed that there is no relation with his duties unless there are special circumstances, such as where it is clearly recognized that personal friendly relations is due to school decentralization (see Supreme Court Decision 2001Do3579, Oct. 12, 201, etc., 200). Further, the crime of bribery is not related to his duties unless there are three special circumstances, such as where a public official has been in charge of performing duties or other duties in accordance with the law, 200. 3. 9. . . . . 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .). . . . . . . . . . . . . . . . . . .

In light of the above legal principles, even if the time when the above two checks were given and received as alleged by the Defendants were to be the company around May, 2002, when Defendant 1 promoted to the company, and actually worked in the distribution transaction division in the Fair Trade Commission, Defendant 1 was notified as the competition promotion and letter of personnel management on May 4, 2002, and until September 5, 2002 (the difference between the actual working division and the letter of personnel management is the personnel management practice of the Fair Trade Commission to minimize the transfer of personnel while effectively placing human resources) and the regulations on the organization of the Fair Trade Commission on the organization of the Fair Trade Commission, it is evident that the above two checks are matters belonging to Defendant 1’s general duties and authority at least, in light of the amount, method and time of giving and receiving the checks, and the relationship between Defendant 1’s gift and gift donation money cannot be deemed as the one-way congratulatory money.

Therefore, the defendants' assertion of mistake or misapprehension of legal principles is without merit.

B. Determination on the Defendants’ assertion of unfair sentencing

Defendant 1 is a person responsible for monitoring the fairness of competition, which is a prerequisite for the smooth operation of a market economy, and is in mind in mind of the integrity of the act’s duties rather than any public official. However, in light of the fact that Defendant 2, the reporter of the report on unfair trade practices, and Defendant 2, who received the amount equivalent to KRW 2 million from him, the crime’s nature and criminal fact, and the fact that the Defendants do not seem to have been seriously divided. In addition, in full view of all the sentencing conditions in the instant case, including the Defendants’ age, character and conduct, environment, and circumstances, etc., considering all the circumstances asserted by the Defendants, even if considering all the circumstances asserted by the Defendants, the lower court’s punishment is too unreasonable. Therefore, this part of the Defendants’ assertion is without merit.

C. Judgment on the Prosecutor’s misapprehension of the legal principle

(1) Of the facts charged in the instant case, the summary of the acceptance of bribe and the offering of bribe for one cashier’s checks (not 3 omitted)

In March 2002, Defendant 1 received 1 million won cashier’s check ( check number 3 omitted) from Defendant 2 to the effect that in the event of filing a report on unfair trade practices or related business operations to the same effect in the future from Defendant 2, Defendant 1, at the same time and place as above, accepted a bribe in relation to his duties, and Defendant 2 issued 1 a 1 million won cashier’s check at the above face value to Defendant 1 at the above time and place, and granted a bribe in relation to public official’s duties.

(2) Issues

The evidence submitted by the prosecutor as to this part of the facts charged is only one copy of the statement of transactions of self-reliance deposit secured by the search and seizure warrant issued by the judge of the district court against Defendant 2, one copy of the relevant transaction claim and one copy of the check issued by the judge of the district court, three copies of the check, three copies of the check, and three copies of the check issued by the court on January 17, 2008, and the defendants dispute the admissibility of evidence. The issue is whether the prosecutor can search and seize the check, which is a compulsory disposition, after the prosecution regarding the admissibility of evidence.

(3) Determination

(A) The Constitution of the Republic of Korea provides that no person shall be subject to search and seizure unless otherwise provided by Act, and that a warrant issued by a judge shall be presented by a prosecutor upon the request of a public prosecutor in the course of search and seizure (see Articles 12 and 16 of the Constitution). As such, the due process and the principle of warrant regarding search and seizure are declared, the search and seizure as a compulsory disposition by an investigative agency shall not be likely to infringe upon the rights or interests of the persons concerned in the process, so the procedures prescribed by the Constitution and the Criminal Procedure Act shall be strictly complied with, and the evidence collected without following such procedures shall not be admitted as evidence for conviction in principle, since it does not follow the lawful procedure prepared to guarantee fundamental human rights (see, e.g., Supreme Court en banc Decision 2007Do3061, Nov. 15, 2007).

(B) Meanwhile, the Criminal Procedure Act of the Republic of Korea (hereinafter “the Act”) provides for search and seizure in detail that the court of the lawsuit shall conduct such compulsory disposition after prosecution (Article 106 through 109 of the Act), and stipulates that the type, subject matter and requirements of search and seizure (Articles 113 and 114 of the Act), warrant requirement for search and seizure outside a public trial and the method of warrant (Articles 113 and 114 of the Act), procedure for execution of a search and seizure warrant and measures after execution (Articles 115 through 135 of the Act) shall be applicable mutatis mutandis to search and seizure conducted in an investigation procedure, and most of the provisions concerning search and seizure, i.e., the type, subject matter and requirements of the court of the lawsuit (Articles 106 and 107 of the Act), Article 101 through 15 of the Act (Article 135 of the Act), Article 19(1)15 of the Act (the Act).

(C) Although Article 215 of the Criminal Procedure Act, which prescribes the warrant requirement regarding search and seizure in an investigation procedure following the principle of warrant requirement under the Constitution, does not explicitly limit the time when a prosecutor can request a search and seizure warrant, a prosecutor may not conduct a search and seizure as a forced investigation if a public prosecutor is prosecuted for the following reasons under the Constitution and the Criminal Procedure Act.

(1) As seen earlier, the Criminal Procedure Act separates the search and seizure in the investigation procedure and the search and seizure in the trial procedure. As such, once a public prosecution is instituted in accordance with the system of our criminal procedure, the authority to file a criminal procedure including the compulsory disposition shall belong to the court of the lawsuit where the case is presided over, and the suspect who is the subject of the investigation shall have the status of the defendant in an equal relationship with the prosecutor in the criminal procedure. As such, the defendant shall not be treated equally with the suspect. In essence, the compulsory disposition that has an effect on the basic human rights of the defendant shall be, in principle, based on the direct judgment of

② A search and seizure is a compulsory disposition aimed at collecting and preserving evidence in the relevant criminal case. Although the Criminal Procedure Act does not grant the prosecutor the right to request a search and seizure warrant to the court of the lawsuit after prosecution (it is deemed that the prosecutor can request a search and seizure within the meaning of urging the court of the lawsuit to make ex officio request), Article 215 of the Act alone does not lead to granting the prosecutor the right to request a search and seizure warrant to a judge other than the court of the lawsuit even after the prosecution is instituted. Furthermore, Article 184 of the Act grants the prosecutor the so-called right to request a search and seizure before the first trial date where it is difficult to use evidence unless it is preserved in advance. As such, it is meaningful that the prosecutor has the authority to request a search and seizure warrant to the judge even before the first trial date after the first trial date after the prosecution is instituted until the first trial date after the date when the court of the lawsuit is practically permitted, and Article 215(2) of the Act provides that the court of the lawsuit shall not be permitted to request a search and seizure warrant separately from the court of the court.

③ The rules on criminal procedure that specifically stipulate the procedures for the request for a search and seizure warrant under Article 215 of the Act (hereinafter “Rules on Criminal Procedure”) provides that the matters to be stated in the application for a search and seizure warrant by an investigative agency include personal information, such as the name of the “suspect,” and the facts constituting the crime, i.e., the gist of the “suspect,” and that the “suspect,” must be submitted to the “suspect,” and the materials that can recognize the need for search and seizure (Articles 107(1) and 108(1) of the Rules on Criminal Procedure does not provide that the personal information of the “defendant,” or the summary of the “fact,” may be stated in the “written request for a search and seizure warrant,” and there is no room to regard that the above provisions on the procedures for the request for a search and seizure warrant may be applied mutatis mutandis to the request for a search and seizure warrant by an investigative agency after prosecution. Thus, the Criminal Procedure Act and the rules on criminal procedure do not provide all specific

(D) Therefore, in the instant case, one copy of the self-reliance deposit statement secured by the search and seizure warrant issued by a judge of the district court around December 7, 2007, which was subsequent to the prosecution ( March 23, 2007), one copy of the pertinent transaction request and the check issuance slip, one of the inquiry details of the check, and three copies of the cashier's checks, which are collected without due process, shall not be admitted as evidence of conviction in principle.

(E) However, even if evidence is collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act, if all circumstances related to a procedural violation committed by an investigative agency during the process of collecting evidence are comprehensively and comprehensively examined, it does not constitute a case where a procedural violation by an investigative agency infringes on the substantive contents of due process, and rather, it is exceptional in cases where the Constitution and the Criminal Procedure Act establish a procedural provision regarding criminal procedure and deems it to bring about a result contrary to the intent of promoting harmony between the principles of due process and substantial truth and real truth and realizing justice in criminal justice, the court may use such evidence as evidence of conviction (see Supreme Court en banc Decision 2007Do3061, Nov. 15, 2007).

However, given that such exceptional cases may result in damage to the principle that evidence collected without following the procedures prescribed by the Constitution and the Criminal Procedure Act is not in compliance with legitimate procedures prepared to guarantee fundamental human rights, and thus, may not be used as evidence for conviction, the court should pay attention not to bring about such a result in the process of determining whether a specific case constitutes an exceptional case as above. Furthermore, in order for a court to determine that the collected evidence may constitute an exceptional case where it can be used as evidence for conviction in spite of a procedural violation committed by an investigative agency, the prosecutor must prove that specific and special circumstances exist (see Supreme Court Decision 2008Do763, Mar. 12, 2009).

In light of the above legal principles, the public prosecutor issued a warrant from a judge other than the court of the lawsuit after the sixth trial date ( December 4, 2007), which was decided at the court below, and conducted the search and seizure of this case. This constitutes an unlawful act of seriously infringing on the rights of the defendant under the criminal procedure in violation of the Constitution of the Republic of Korea and the Criminal Procedure Act, which does not permit the search and seizure by the investigative agency even before the first trial date after prosecution. The public prosecutor requested the court to conduct ex officio action against the court of the lawsuit, in the sense that the court requested a search and seizure or requested the inquiry from the court of the court of the lawsuit under Article 272 of the Act in light of the characteristics of the above evidence, it is deemed that the court of the lawsuit could have lawfully secured the above evidence through the court of the lawsuit (the fact inquiry by the method of securing evidence by exercising jurisdiction over the case cannot be deemed as avoiding the warrant requirement), and in this case, it cannot be deemed that the court constitutes an exceptional case where there is a specific and exceptional evidence collected by the investigative agency.

(F) Ultimately, the above evidence is inadmissible and attached thereto, and the second evidence obtained on the basis of illegally collected evidence is not admissible as well as it cannot be deemed as an exceptional case that can be used as evidence for conviction.

(4) Therefore, the court below's decision of not guilty on the ground that there is no evidence to prove this part of the facts charged based on the determination of evidence as stated in its holding is just and acceptable. As the prosecutor pointed out in the judgment below, there is no error of law by misunderstanding the legal principles on seizure and search, thereby affecting the conclusion of the judgment, and the prosecutor'

3. Conclusion

Therefore, the appeal by the Defendants and the public prosecutor is dismissed in accordance with Article 364(4) of the Criminal Procedure Act, since all of the appeals by the Defendants and the public prosecutor are without merit.

[Attachment]

Judges Kim Ho-ho (Presiding Judge)

1) Although the academia’s view on whether to allow search and seizure by an investigative agency after prosecution is positive and illegal, among the positive view, it seems that there are many opinions that the search and seizure warrant is limited to the date prior to the first trial date. Moreover, since the execution after obtaining a warrant of search and seizure from a judge other than the court of the lawsuit, it does not constitute a serious illegality, there seems to be a view that admissibility of the seized object is admitted, since it does not constitute a serious illegality.