2010Do12604 Violation of the Road Traffic Act (Drinking)

○○, Self-employed

Housing marju City

Reference domicile Seoul IMOD

Defendant

Suwon District Court Decision 2010No216 Decided September 10, 2010

July 14, 2011

The judgment of the court below is reversed, and the case is remanded to the Panel Division of the District Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below: ① on July 11, 2009: around 30, the court below found the Defendant guilty of having collected blood of the Defendant without consciousness from medical professionals, ③ it is difficult to obtain the Defendant’s prior or ex post facto consent to obtain the consent of the court on the grounds that it is difficult to view that the Defendant’s blood collection without consciousness was conducted within 119 emergency vehicles because it was difficult for him to obtain the consent of the court on the grounds that the Defendant’s use of drinking alcohol was dives of the Defendant’s use of alcohol at the latest park, ③ it is difficult to obtain the consent of the court on the following grounds: (i) the Defendant’s use of drinking alcohol at the time when he was found guilty, and (ii) the Defendant’s use of drinking alcohol at the time when he was found guilty of the Defendant’s use of blood dilution; and (iii) the National Science Research Institute recognized that it was difficult to obtain the consent of the court on the following grounds: (i) the Defendant’s use of blood alcohol samples measured of the Defendant.

2. However, we cannot agree with the judgment of the court below for the following reasons.

In principle, evidence collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act may not be used as evidence of guilt. However, when comprehensively and comprehensively examining all the circumstances related to a procedural violation committed by an investigation agency during the process of collecting evidence, it does not constitute a case where a procedural violation by an investigation agency infringes on the substantive contents of due process. Rather, the court may use such evidence as evidence of conviction only in exceptional cases where it is deemed that the Constitution and the Criminal Procedure Act establish a procedural provision concerning criminal procedure and promote harmony between the principle of due process and the discovery of substantive truth and thereby bring about a result contrary to the intent of realizing criminal justice (see Supreme Court en banc Decision 2007Do3061, Nov. 15, 2007).

When necessary for criminal investigation, a judicial police officer may seize, search or verify evidence by a warrant issued by a judge upon request by a public prosecutor (Article 215(2)); and a judicial police officer may, if necessary, seize, search or inspect a suspect in accordance with the provisions of Article 200-2, 200-3, 201 or 212, request a search and seizure warrant without a warrant at the scene of arrest if it is necessary to continue seizure of seized articles (Articles 216(1)2 and 217(2) of the Criminal Procedure Act). If it is impossible to obtain a warrant from a judge because of urgency at the scene of an offense or immediately after the crime, it is difficult to obtain a warrant ex post facto, but it is also difficult to view that an investigative agency has obtained necessary consent to obtain evidence from a public prosecutor with respect to blood accident without consent of the defendant without consent of the court to the extent that it can be found that it constitutes an unlawful disposal of evidence under Article 217(1)2 of the Criminal Procedure Act.

Nevertheless, the court below found the defendant guilty of the charged facts of this case by taking the inquiry report of this case as evidence of guilt. This judgment of the court below is erroneous in the misapprehension of legal principles as to the admissibility of illegally collected evidence, which affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee

Justices Kim Gi-hwan

Justices Min Il-young

Justices Lee In-bok et al.