The decision of temporary return without notice to the defendant is unlawful.

The provisional return decision without giving the defendant an opportunity to state his opinion is illegal in violation of Article 135 of the Criminal Procedure Act, and this illegality affected the result of the trial.

Articles 135 and 415 of the Criminal Procedure Act

Re-appellant

Busan District Court Order 79 seconds101 Dated December 28, 1979

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

When the High Court decides to temporarily return the seized article, it is stipulated in Article 135 of the Criminal Procedure Act that the prosecutor's victim or defense counsel should be notified in advance after giving notice to the prosecutor's defendant or defense counsel, which is a measure to give him an opportunity to state his opinion regarding the provisional return of the seized article.

In regard to the application for temporary return of the seized article by the applicant Kim Young-ok as to this case, the court below did not find out the defendant's opportunity to state his opinion by giving notice to the prosecutor, although the prosecutor requested his opinion.

Therefore, the court below's decision to temporarily return without giving the defendant (re-appellant) an opportunity to state his opinion is not unlawful in violation of the above Article of the Act and its illegality affected the result of the trial. Thus, the court below's decision is reversed and the case is remanded to the court below for further proceedings.

This is consistent with the opinions of the involved judges.

Justices Kim Yong-chul (Presiding Justice)