[1] The admissibility of seized articles collected in violation of the procedures stipulated in the Constitution and the Criminal Procedure Act and the secondary evidence acquired based on such seized articles and the criteria for its determination

[2] In a case where an article seized at the time of emergency arrest is not immediately returned without a search and seizure warrant under Article 217(2) and (3) of the Criminal Procedure Act, whether the admissibility of evidence and the consent of evidence are admitted (negative)

[1] In order to guarantee fundamental human rights, the normative power of the Criminal Procedure Act, which provides specific standards for search and seizure procedures, should be maintained firmly so that the Constitution declaring the basis of due process and warrant requirement regarding search and seizure and can realize harmoniously the establishment of substantial truth and the ideology of the protection of individual rights. As such, evidence collected without following the procedures prescribed by the Constitution and the Criminal Procedure Act, as well as secondary evidence obtained based on such procedures, shall not be admitted as evidence for conviction in principle, since it does not comply with legitimate procedures established for the protection of fundamental human rights. However, in determining whether to grant admissibility of seized articles illegally collected, the Majority Opinion of the provisions of the procedure, namely, the degree and degree of violation, specific details and possibility of evasion, degree of infringement of the rights and interests to be protected, relation between the defendant and the investigation agency, degree of causation between the act of violation and the collection of evidence, recognition and intent of the investigation agency, etc., should be considered as having been established in light of the overall and comprehensive examination of the following factors: in cases where the investigation agency’s violation of due process constitutes evidence collection of due process, and evidence collection of evidence in violation of the Criminal Procedure Act.

[2] Articles 216(1)2 and 217(2) and (3) of the Criminal Procedure Act provide that where a judicial police officer arrests a suspect pursuant to the provisions of Article 200-3(Emergency Arrest) of the Criminal Procedure Act, he/she may, if necessary, seize and search at the site of arrest without a warrant; where it is necessary to continue to seize the seized articles, he/she shall request a warrant of search and seizure without delay; where a warrant of search and seizure is not issued, the seized articles shall be immediately returned. In violation of Article 217(2) and (3) of the Criminal Procedure Act, the seizure articles which have not been returned immediately without a warrant of search and seizure shall not be used as evidence for conviction. In light of the importance of the warrant requirement declared by the Constitution and the Criminal Procedure Act, it does not change even if the defendant or his/her defense counsel consented to the seizure as evidence.

[1] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 215, 307, and 308-2 of the Criminal Procedure Act / [2] Articles 216(1)2, 217(2) and (3), 308-2, and 318(1) of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2007Do3061 Decided November 15, 2007 (Gong2007Ha, 1974) Supreme Court Decision 2008Do11437 Decided March 12, 2009 (Gong2009Sang, 900) Supreme Court Decision 2009Do526 Decided April 23, 2009 (Gong2009Sang, 804) Supreme Court Decision 2008Do10914 Decided May 14, 2009 (Gong2009Sang, 925)

Defendant (foreigner)

Prosecutor

Seoul Central District Court Decision 2009No1841 Decided October 8, 2009

The appeal is dismissed.

The grounds of appeal are examined.

In order to guarantee fundamental human rights, the normative power of the Criminal Procedure Act, which provides specific standards for search and seizure procedures, to ensure that the Constitution and the foundation of due process regarding search and seizure and warrant principles can be harmoniously realized. As such, evidence collected without following the procedures prescribed by the Constitution and the Criminal Procedure Act, as well as secondary evidence acquired based on such standards, shall not be used as evidence for conviction in principle as it does not comply with the legitimate procedures established to guarantee fundamental human rights. However, in determining whether to grant admissibility of seized materials illegally collected, all circumstances related to the procedure committed in the process of evidence collection by an investigative agency, namely, the purport and degree of violation, specific details and possibility of evasion, relevance between the rights and interests to be protected, degree of causal relationship between the defendant and the investigation agency, and degree of recognition and intent of the investigation agency, etc. In light of the overall and comprehensive review of the aforementioned facts, the same applies to cases where the investigation agency’s violation of due process violates the principle of evidence collection and evidence collection, rather than to establish an exceptional provision for evidence collection based on evidence under the Criminal Procedure Act and its entire criminal justice procedures.

Meanwhile, Articles 216(1)2, 217(2), and 217(3) of the Criminal Procedure Act provide that where a criminal suspect is arrested pursuant to Article 200-3(Emergency Arrest) of the Criminal Procedure Act, if necessary, a judicial police officer may seize and search at the site of arrest without a warrant; where it is necessary to continue to seize seized articles, the judicial police officer shall request a search and seizure warrant without delay, and where it is necessary to immediately seize the seized articles, and where it is not issued, the seized articles shall be immediately returned. In violation of Article 217(2) and (3) of the Criminal Procedure Act, the seizure articles which have not been returned immediately without a warrant shall not be used as evidence for conviction. In light of the importance of the warrant requirement stated in the Constitution and the Criminal Procedure Act, it does not change even if the criminal defendant or defense counsel consented to such seizure as evidence.

According to the reasoning of the judgment below, the court below found the defendant guilty on the following grounds: since the non-indicted salivists belonging to the outside of the Seoul Metropolitan Police Agency did not meet the requirements of the emergency arrest required under Article 12(5) of the Constitution at the time of the emergency arrest of the defendant, and Articles 200-3(1) and 200-5 of the Criminal Procedure Act at the time of emergency arrest, the emergency arrest of the defendant is illegal arrest; since the defendant illegally arrested the defendant at the police on December 1, 2008 and sent the defendant to the prosecutor's office on December 10, 2008, the interrogation of the suspect was conducted in close vicinity to the illegal emergency arrest. Since the defendant received the assistance of the counsel at the time, the above interrogation of the suspect cannot be deemed as evidence of guilt, since the emergency arrest of the defendant was unlawful, each seizure procedure accompanied by the above emergency arrest procedure cannot be exempted, and even if the above emergency arrest procedure was permitted due to lawful and accompanied by the warrant after the issuance of the warrant, etc.

In light of the above legal principles, it is reasonable that the court below denied the admissibility of seized articles despite the consent of evidence (the interrogation protocol of the defendant prepared by the prosecutor in the record only seems to have admitted the authenticity, and it is difficult to find grounds to deem that the defendant consented to it as evidence). It is reasonable that the court below denied the admissibility of evidence of each of the above evidence and acquitted the defendant on the ground that there is no proof of crime against the facts charged in this case. There is no violation of the legal principles as to admissibility of evidence or violation of the

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)