[1] The standard for determining whether an article can be lawfully confiscated when an emergency arrest is conducted under Article 217 (1) of the former Criminal Procedure Act

[2] In a case where a police officer seizes another person's resident registration certificate, driver's license, etc., which he/she was under his/her custody while making emergency arrest of the suspect suspected of committing so-called telephone fraud, the case holding that it is lawful as a seizure within the scope necessary for the investigation of the pertinent crime under Article 217 (1) of the former Criminal Procedure Act, and thus, it is admitted as evidence for the crime of embezzlement

[1] According to Article 217(1) of the former Criminal Procedure Act (amended by Act No. 8496 of Jun. 1, 2007), a public prosecutor or a judicial police officer may seize articles owned, possessed, or kept by a suspect within 48 hours from the time of emergency arrest without a warrant only within the scope of 48 hours from the time of emergency arrest, evidence related to the crime in question or within the minimum scope necessary for the investigation of the crime that is the cause of emergency arrest. In this case, whether certain articles are subject to seizure as they are within the minimum scope necessary for the investigation of the crime that is the cause of emergency arrest, shall be determined objectively by comprehensively taking into account various circumstances at the time of seizure, such as the details and nature of the crime in question, the shape and nature of the articles to be seized, the degree of the crime in question, the degree of evidence related to the crime in question, and

[2] In a case where a police officer seizes another person's resident registration certificate, driver's license, etc., which he/she had been under his/her custody while emergency arresting the suspect suspected of committing so-called telephone fraud, the case holding that it is legitimate as a seizure within the scope necessary for the investigation of the relevant crime under Article 217 (1) of the former Criminal Procedure Act (amended by Act No. 8496 of Jun. 1, 2007) and thus, it is admitted as evidence for the crime of embezzlement of stolen articles

[1] Article 217 (1) of the former Criminal Procedure Act (amended by Act No. 8496 of Jun. 1, 2007) / [2] Article 217 (1) of the former Criminal Procedure Act (amended by Act No. 8496 of Jun. 1, 2007), Article 360 of the Criminal Act

Defendant

Defendant and Prosecutor

Attorney Lee Jin-hoon

Seoul Central District Court Decision 2007No4433 Decided February 14, 2008

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the Defendant’s ground of appeal

According to Article 217(1) of the former Criminal Procedure Act (amended by Act No. 8496, Jun. 1, 2007; hereinafter the same) Article 217(1) of the same Act, a public prosecutor or judicial police officer may, in cases of emergency arrest of a suspect, seize articles owned, possessed, or kept by the suspect within 48 hours from arrest without a warrant, and within the minimum limit necessary for the investigation of the crime that constitutes the ground for emergency arrest. In such cases, whether certain articles are subject to seizure as they are within the minimum limit necessary for the investigation of the crime that constitutes the ground for emergency arrest, shall be determined objectively by comprehensively taking into account various circumstances at the time of seizure, such as the details and nature of the relevant crime, the shape and nature of the articles to be seized, the degree of the relevant crime, the degree of evidence related to the relevant crime, the possibility of destruction, and the degree

In light of the above legal principles and the records, subparagraphs 1 through 4 of the instant evidence is the resident registration certificate, driver's license and wallets that the defendant kept in custody, and was confiscated immediately after the emergency arrest due to the fact that the defendant committed the so-called telephone fraud crime. Thus, it appears that there was considerable reason to suspect that the above crime was related to the telephone fraud crime at the time of seizure, since it is within the scope necessary to investigate the crime and there was considerable reason to suspect that it was related to the telephone fraud crime

In the same purport, the court below rejected the defendant's assertion that the evidence Nos. 1 through 4 constitutes illegally collected evidence, and maintained the judgment of the court of first instance which found the defendant guilty of the crime of embezzlement by using it as evidence, and there is no error in the misapprehension of legal principles as to the scope of seizure without warrant under Article 217 of the former Criminal Procedure Act, as otherwise alleged in the ground of appeal.

2. As to the Prosecutor’s ground of appeal

Examining the reasoning of the judgment of the court below in light of the records, it is just to maintain the judgment of the court of first instance which acquitted the defendant of the crime of aiding and abetting the crime of aiding and abetting the crime of aiding and abetting the crime of aiding and abetting the crime of aiding and abetting the crime of aiding and abetting the crime of aiding and abetting the crime of aiding and abetting the crime of aiding and abetting the crime of aiding and abetting the victim.

3. Conclusion

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

Justices Shin Hyun-chul (Presiding Justice)