In a case where the defendant was prosecuted for violating the "Control of Firearms, Swords, Explosives, etc. Act" on the ground that he possessed a maternity gun, etc. prohibited from possession, the case holding that the seizure articles collected according to the seizure procedures executed after the term of validity of the seizure and search warrant, and "the results of the inspection and reply as to whether he fell under the upper gun and gas sprayers" obtained based thereon cannot be used as evidence of guilt, and the remaining evidence alone is insufficient to recognize

In a case where the defendant was prosecuted for violating the "Control of Firearms, Swords, Explosives, etc. Act" on the ground that he possessed a captive gun or possessed swords and gas sprayers without permission, the case holding that in a case where an investigative agency issued a warrant of search and seizure by the court for inspection after the expiry of the period of validity, seizes articles by executing the warrant, and replys to the result of inspection as requested by the prosecutor, such seizure articles and inspection report are evidence collected or based on it in violation of the warrant principle under the Criminal Procedure Act, and cannot be used as evidence for conviction because the violation of due process violates the warrant principle under the Criminal Procedure Act, and the seizure articles collected by the execution procedure after the expiration of the period of validity of the search and seizure warrant and the second evidence obtained based on the results of the inspection of the relevant gas sprayers cannot be used as evidence of guilt, and that the remaining evidence submitted by the prosecutor alone is insufficient to recognize the facts charged.

Article 12(3) of the Constitution of the Republic of Korea; Articles 11(1), 71 subparag. 1, and 73 subparag. 1 of the Control of Firearms, Swords, Explosives, etc. Act; Article 12(1) of the former Control of Firearms, Swords, Explosives, etc. Act (Amended by Act No. 11690, Mar. 23, 2013); Articles 114(1), 215, 219, 308-2, and 325 of the Criminal Procedure Act

Defendant

Prosecutor

Freeboard and one other

Law Firm Chang-chul, Attorney Lee Young-soo

Incheon District Court Decision 2012Gohap3233 Decided February 15, 2013

The prosecutor's appeal is dismissed.

1. Summary of the prosecutor's grounds for appeal;

The court below rejected the admissibility of "afford guns and gas sprayers" without reasonable grounds, and acquitted the defendant for lack of evidence despite sufficient evidence such as the defendant's confession statement and investigation report (Evidence No. 13). The court below erred by misapprehending the facts, which affected the conclusion of the judgment (the fact-finding).

2. Determination

A. Summary of the facts charged

1) No one may possess a gun or anything that can be seen like a gun (hereinafter referred to as “marbation gun”) in accordance with the Presidential Decree.

Nevertheless, from May 24, 2011, the Defendant 15, 103, 112-gil, 12-gil, 1, 1 (P9C), 1, 1, 3708029, 1, 1, 1, 1, 1, 1, 1, 1 (D.S.M.M.0097), 1, 1, 1, (1, 1, 1, (1, 1, 1, 1, 1, 1, (1, 1, and 1, 1 (M.0624), 1, 1, 1, and 1,000 (M.1A.1), and 1,000) purchased from his dwelling in Yeonsu-gu Incheon, Incheon. The Defendant carried a mother gun on the wall of the wall. The Defendant possessed it.

2) On February 18, 2012, the Defendant kept at least 12 15,103, Cheongnam-ro 112,00,00,00 in the Yeonsu-gu Incheon Metropolitan City (Cheongnam-dong and Cheongdam-ro), one gas gas sprayers (DaH01085749), and at least 6 cm in the length of knife, at least 2 knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife

In order to possess swords and explosives, they did not obtain permission from the chief of the police station having jurisdiction over their domicile. Accordingly, the defendant possessed swords and explosives gas sprayers without permission.

B. The judgment of the court below

The lower court held that “the instant search and seizure was executed on March 2, 2012, which was March 1, 2012, when the period of validity of the warrant of search and seizure was March 1, 2012,” and thus, the search and seizure procedure violates Article 12(3) of the Constitution, Articles 114(1), 215, and 219 of the Criminal Procedure Act, etc. Furthermore, the investigation agency may request a court again after confirming and returning the period of validity of the above warrant. As such, the instant search and seizure procedure constitutes an infringement of the substantive substance of due process (see, e.g., Supreme Court en banc Decision 2007Do3061, Nov. 15, 2007). Accordingly, the instant search and seizure procedure is inadmissible due to its illegality, and its second evidence obtained based on that procedure is inadmissible.”

In addition, the remaining evidence alone found the Defendant not guilty on the ground that the instant facts charged constitute a case where there is no proof of crime, on the grounds that the Defendant possessed a mother gun prohibited from possessing under the Control of Firearms, Swords, Explosives, etc. or possessed a swords, explosives gas gun subject to permission from the chief of the police station having jurisdiction over the domicile.

C. Judgment of the court below

Article 308-2 of the Criminal Procedure Act provides that “Any evidence collected in breach of the due process shall not be admitted as evidence.” In order to guarantee fundamental human rights, the normative force of the Criminal Procedure Act, which provides specific standards for the procedures of seizure, search, and inspection and appraisal so that the Constitution declaring the due process relating to seizure, search and appraisal and appraisal and the basis of warrant requirement can be achieved harmoniously, should be maintained. As such, evidence collected without following the procedure prescribed by the Constitution and the Criminal Procedure Act, as well as secondary evidence obtained based on such standards, shall not be admitted as evidence as evidence in principle, since it does not comply with the legitimate procedure established to guarantee fundamental human rights. In determining whether to grant admissibility of seized materials illegally collected, it should also be deemed that it constitutes an exceptional evidence of the Criminal Procedure Act, i.e., the purport and degree of the violation, the possibility of avoidance, the nature and degree of infringement of rights and interests to be protected, the relationship between the defendant and the collection of evidence, and the degree of causal relationship between the Criminal Procedure Act and the Criminal Procedure Act’s overall criminal investigation agency’s conviction and evidence.

In this case, in a case where public health unit, investigative agency issued a warrant of search, seizure, and inspection from the court, and seizes articles after the period of validity expires, and the inspection results are sent to the request for inspection of seized articles, such seized articles and inspection reports are collected or based on the warrant principle under the Criminal Procedure Act, and their procedural violation infringes on the substantial contents of due process, and thus, they cannot be used as evidence of guilt.

In other words, even if it is necessary to prevent the occurrence of scarcitys using firearms, similar firearms, swords, etc. with foreign countries by strictly managing firearms, similar firearms, etc., an investigative agency may, for the prevention or investigation of such crimes, seize objects after obtaining a warrant in accordance with the due process prescribed by the Constitution and laws, and thus, it is sufficiently possible for the investigative agency to avoid the collection of illegal evidence. The inspection result of the inspection of goods seized by the execution of an illegal seizure and search warrant cannot be deemed that the causal relationship between the collection of illegal evidence and the collection of secondary evidence is dilution or cut off. Thus, the exclusion of illegally collected evidence and the admissibility of secondary evidence from the admissibility of evidence may not be deemed an exceptional case deemed to go against the purpose of realizing the justice of criminal justice

As such, “absent guns and gas sprayers”, which are illegally collected and secondary evidence, cannot be used as evidence of guilt, and the remaining evidence submitted by the prosecutor alone is insufficient to recognize the facts charged of this case. As such, the facts charged of this case constitutes a case where there is no proof of crime. Accordingly, the prosecutor’s assertion of mistake of facts is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed due to the lack of reason, and it is so decided as per Disposition (However, since it is obvious that the judgment of the court below has erroneous entries, it is corrected that the "many agency" in Section 17 of the judgment of the court below is changed to an " investigative agency" in accordance with Article 25 of the Rules on

Judges Lee Jae-chul (Presiding Judge)