[1] The meaning of a seizure article to be used as evidence under Article 133(1) of the Criminal Procedure Act

[2] Whether an article falling under Article 48 of the Criminal Code may be temporarily returned prior to the final judgment on the case on the merits of the defendant (affirmative)

[3] In case where a person to receive the return of seized property renounces its ownership after seizure (negative), whether the duty of return of seized property by an investigative agency is extinguished (negative), and the validity of waiver of the right to claim return to

[1] If the latter part of Article 133(1) of the Criminal Procedure Act provides that the articles to be seized shall be temporarily returned at the court's discretion in relation to the articles to be seized for the purpose of "for the purpose of only evidence" under Article 133(2) of the Criminal Procedure Act, it shall be interpreted that the articles to be seized for the purpose of "for the purpose of evidence" include articles of the nature as evidence and those of the nature as articles to be confiscated.

[2] Among articles that are deemed to be confiscated and seized, the meaning that they fall under the necessary confiscation under the special provisions of law or that seizure of articles that are likely to be confiscated is conducted in order to preserve the execution of a judgment of confiscation because no one is permitted to own such articles. As such, although such articles are not subject to provisional return, it is left at the discretion of the court to decide whether to confiscate articles that fall under Article 48 of the Criminal Code, barring any special circumstance, the court of the lawsuit shall be deemed to have no legal obstacle to temporarily return such articles prior to the final judgment on the case of the merits of the defendant.

[3] Even if a person subject to return, such as a person subject to seizure, renounces his ownership after seizure, such person cannot affect the duty of the investigative agency to return the seized articles, and it is not effective even if the investigative agency expresses its intention to waive the right to return under the Criminal Procedure Act.

[1] Article 133 of the Criminal Procedure Act/ [2] Article 133 of the Criminal Procedure Act/ [3] Article 133 of the Criminal Procedure Act

[2] Supreme Court Order 65Mo21 dated January 28, 1966 (No. 14-1, type 1), Supreme Court Order 84Mo43 dated July 24, 1984 (Gong1984, 1462) / [3] Supreme Court en banc Order 94Mo51 dated August 16, 1996 (Gong196Ha, 2764)

Defendant

Prosecutor

Seoul District Court Order 96 seconds5272 dated January 18, 1997

The reappeal is dismissed.

1. (A) Article 133(1) of the Criminal Procedure Act provides that “Any seized article which is deemed unnecessary to continue seizure shall be returned to the owner by ruling even before the completion of the case by the defendant, and any seized article to be produced as evidence may be temporarily restored upon the request of the owner, possessor, keeper, or presenter.” Article 133(2) provides that “Any article seized only for evidence and which the owner or possessor has to use continuously shall be temporarily returned after photographing it and taking other necessary measures to preserve its original form.”

Article 133(1) latter part of Article 133(2) provides that the articles to be seized shall be provisionally returned at the discretion of the court with regard to the articles to be used as evidence. It is reasonable to interpret that the articles to be used as evidence include articles to be seized, which are the character of the articles to be confiscated, and those which are the character of the articles to be confiscated. Meanwhile, it includes the meaning that articles to be confiscated, which are deemed necessary under the special provisions of the law, are items to be confiscated, or whose possession is not permitted, are to be preserved for the purpose of preserving execution of the judgment of confiscation. Thus, such articles to be seized are not subject to provisional return, but are not subject to provisional return (see, e.g., Supreme Court Order 65Mo21, Jan. 28, 196; 84Mo43, Jul. 24, 1984); and as to articles falling under Article 48 of the Criminal Act, there is no special circumstance to leave such articles to the court of the lawsuit at discretion.

The Supreme Court's decision cited in the grounds of reappeal is a necessary confiscation under the Customs Act, and is different from this case.

The ground of reappeal as to this point is without merit.

(B) Even if a person subject to return, such as a person subject to seizure, gives up ownership after seizure, such person cannot affect the duty of an investigative agency to return the seized article, and even if an investigative agency expresses his/her intent to waive the right to return under the Criminal Procedure Act, it is not effective (Supreme Court en banc Order 94Mo51 Decided August 16, 196). Therefore, even if the defendant given up ownership of the seized article in this case against the investigative agency, the lower court did not interfere with the provisional return order accepting the Defendant’s claim for temporary return of the seized article.

The grounds for reappeal as to this point are without merit.

2. Therefore, the reappeal is dismissed as per Disposition.

Justices Lee Don-hee (Presiding Justice)