In a case where the investigative agency presented a search and seizure warrant to the Re-Appellant at the time of seizure of the mobile phone, etc. of the Re-Appellant, while the investigative agency requested specific confirmation of the facts constituting the crime of the warrant, and the defense counsel of the Re-Appellant did not show the part regarding the criminal facts of the warrant and confirmed the warrant while participating in the investigation of the Re-Appellant, the case holding that it is difficult to recognize it as lawful presentation of the search and seizure warrant under Articles 219 and 118 of the Criminal Procedure Act, since the investigative agency did not show specific confirmation of the contents of the warrant

In a case where an investigative agency presented a search and seizure warrant to the re-appellant at the time of seizure of the mobile phone, etc. of the re-appellant (hereinafter "search disposition"), and the Re-Appellant requested specific confirmation of the facts constituting the offense of the warrant, but the investigative agency did not present the part of the warrant while participating in the investigation of the re-appellant, and thereafter his defense counsel confirmed the warrant, the case held that the court below erred by misapprehending the provisions of the Constitution and the Criminal Procedure Act on the ground that it is difficult to recognize the seizure disposition as lawful presentation of the search and seizure warrant under Articles 219 and 118 of the Criminal Procedure Act, on the ground that the investigative agency was requested for specific confirmation of the contents of the warrant at the time of seizure disposition, since it appears that the investigative agency did not present the contents of the search and seizure warrant even though it was requested by the re-appellant at the time of seizure disposition.

Article 12(3) of the Constitution of the Republic of Korea; Articles 114(1), 118, 219, 415, 417 of the Criminal Procedure Act; Article 58 of the Regulation on Criminal Procedure

Re-appellant

Attorneys Yoon Ho-hee et al.

Incheon District Court Order 2019No2 dated November 14, 2019

The order of the court below is reversed, and the case is remanded to Incheon District Court Branch.

The grounds of reappeal are examined.

1. The court below rejected the quasi-appeal claim of this case on the following grounds: "When an investigative agency offers a warrant to the re-appellant at the time of seizure of mobile phone, etc. (hereinafter "the seizure disposition of this case"), the re-appellant requested specific confirmation of the warrant; and thereafter, the defense counsel of the re-appellant at the time of the re-appellant's participation in the investigation. Even if the investigative agency did not show the criminal facts stated in the warrant in the search of this case, it is difficult to view that the search and seizure warrant was not presented."

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The main text of Article 12(3) of the Constitution and Articles 219 and 118 of the Criminal Procedure Act provide that “When an investigative agency executes a search and seizure warrant, it shall present the search and seizure warrant to the person subject to the disposition.” In addition, Articles 219 and 114(1) main text of the Criminal Procedure Act and Article 58 of the Rules on Criminal Procedure provide that the name and name of the suspect, crime, articles to be seized, place, body, article to be searched, date of issuance, period of validity, grounds for search and seizure, etc. shall be stated in the search and seizure warrant.

The purpose of this study is to minimize the infringement of privacy and property rights by ensuring the search and seizure of goods, places, and bodies stated in the search and seizure warrant, along with procedural guarantee of warrant requirement, and to ensure that the opportunity of appeal by the person subject to seizure, such as quasi-appeal, is substantially guaranteed.

In full view of the relevant provisions and the legislative purport of the system for presenting warrants, an investigative agency that executes a warrant of search and seizure shall verify that the warrant is a search and seizure by warrant issued by a judge and at the same time present a warrant of search and seizure to ensure that the Criminal Procedure Act stipulates that the warrant of search and seizure is necessary or all necessary matters are sufficiently known (see, e.g., Supreme Court Decision 2015Do12400, Sept. 21, 2017).

B. According to the lower court’s findings, it appears that the investigative agency did not show the contents of the search and seizure warrant even when it was requested by the re-appellant at the time of the instant search and seizure disposition. Thus, in light of the legal principles as seen earlier, it is difficult to recognize the lawful presentation of search and seizure warrant under Articles 219 and 118 of the Criminal Procedure Act. Therefore, the lower court should determine whether the investigative agency met the above requirements at the time of the instant search and seizure disposition

Nevertheless, the lower court determined that the instant search and seizure disposition was not unlawful solely based on the foregoing circumstances. In so doing, the lower court erred by violating the relevant provisions of the Constitution and the Criminal Procedure Act.

3. Therefore, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Tae-tae (Presiding Justice)