[1] Whether the evidence is admissible by a warrant of seizure and search issued by a judge of the district court other than the court of the lawsuit pursuant to Article 215 of the Criminal Procedure Act (negative in principle)

[2] Where evidence collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act can be exceptionally used as evidence of guilt, and where the burden of proof on such special circumstances is borne (=public prosecutor)

[3] In a case where Defendant A, who is a public official of the Fair Trade Commission, was prosecuted for receiving a bribe from Defendant B, the case affirming the judgment below which acquitted Defendant A on the ground that the evidence submitted by the prosecutor was either collected without due process after prosecution or obtained based on the secondary evidence, and thus cannot be used as evidence for conviction

[1] Although Article 215 of the Criminal Procedure Act does not explicitly limit the time when a prosecutor can request a search and seizure warrant before prosecution, in full view of the principles of due process guaranteed by the Constitution, the right to trial, the litigation structure under the current Criminal Procedure Act aiming at the principle of trial-oriented principle, the party principle, the structure of relevant laws and regulations, the text form, and contents, etc., the search and seizure cannot be conducted pursuant to Article 215 of the Criminal Procedure Act with respect to a prosecuted case after prosecution has been instituted. Nevertheless, if a prosecutor conducted a search and seizure by a warrant issued by a judge of the district court other than the court pursuant to Article 215 of the Criminal Procedure Act after prosecution, the collected evidence is not in compliance with the legitimate procedure prepared for guaranteeing fundamental human rights, and thus, it cannot be used as evidence of guilt in principle.

[2] Even in cases where evidence is collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act, if all circumstances related to a procedural violation committed by an investigative agency during the process of collecting evidence are comprehensively and comprehensively examined, it does not constitute a case where a procedural violation by an investigative agency infringes on the substantive contents of due process, and rather, it is deemed that the Constitution and the Criminal Procedure Act establish a procedural provision regarding criminal procedure and thereby bring about a result contrary to the intent of realizing justice in criminal justice, thereby promoting harmony between the principles of due process and substantial truth-finding and promoting the admissibility of evidence, the court may use it as evidence for conviction. However, in the process of determining whether a specific case constitutes an exceptional case, the court must pay attention not to bring about a result that may not cause damage to the principle that the collected evidence cannot be used as evidence for conviction without following due process, and further, if it is intended to deem that such a violation constitutes an exceptional case where it can be admitted as evidence for conviction, the prosecutor must prove that there are specific and special circumstances that such exceptional

[3] In a case where Defendant A, who is a public official of the Fair Trade Commission, was indicted on charges of accepting a bribe in relation to his duties after receiving a check to the effect that it would be well considered in the event of reporting of future unfair trade practices or handling related duties from liquor wholesalers, the case affirming the judgment below which acquitted Defendant A on the ground that the evidence submitted by the prosecutor is merely a secondary evidence collected without following lawful procedures after prosecution or obtained based on it, and thus cannot be deemed as evidence for conviction in principle, and further, the prosecutor urged the court of the lawsuit to ex officio conduct an search and seizure, or requested a fact inquiry pursuant to Article 272 of the Criminal Procedure Act, and did not violate the procedure, and the purpose of proof can be achieved without violating the procedure, the above evidence does not constitute exceptional cases where evidence can be used as evidence for conviction.

[1] Articles 12(1) and (3), and 27 of the Constitution of the Republic of Korea; Articles 215, 219, 275(1), and 308-2 of the Criminal Procedure Act; Articles 107(1) and 108(1) of the Regulation on Criminal Procedure / [2] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 215, 307, 308, and 308-2 of the Criminal Procedure Act / [3] Articles 129(1) and 133(1) of the Criminal Act; Articles 215, 272, 307, 308, and 308-2 of the Criminal Procedure Act

[2] Supreme Court en banc Decision 2007Do3061 Decided November 15, 2007 (Gong2007Ha, 1974), Supreme Court Decision 2008Do763 Decided March 12, 2009 (Gong2009Sang, 503), Supreme Court Decision 2008Do11437 Decided March 12, 2009 (Gong2009Sang, 9Sang, 900) Supreme Court Decision 2009Do11401 Decided December 24, 2009 (Gong2010Sang, 298)

Defendant 1 and one other

Defendant 1 and Prosecutor

Law Firm Masung, Attorney Lee Sung-tae

Suwon District Court Decision 2008No5774 decided September 10, 2009

Each appeal shall be dismissed.

We examine the grounds of appeal.

1. As to the Defendant’s ground of appeal

The legal interest in the crime of bribery is the process of performing the duties of a public official, the trust in the society, and the uncertainty of the act of performing his duties. Since the bribery does not require any solicitation or unlawful act, there is no special solicitation in recognizing the bribe of money and valuables received, it is sufficient that money and valuables have been received in connection with his duties, and there is no need to have an individual act or a quid pro quo relation. When a public official receives money and valuables or other benefits from a person subject to his duties, the bribery cannot be deemed as merely an exceptional consideration in light of the social norms, or it cannot be deemed that there is no relation with his duties unless there are special circumstances such as where it can be clearly recognized that an individual pro rata relation is due to the need for decentralization (see Supreme Court Decision 2001Do3579, Oct. 12, 201, etc.).

In addition, the legal interest of bribery is the process of performing the duties and the trust of the society in which the non-purchase of the act of duties is directly protected. Thus, the " duty" in the crime of bribery does not include not include not only the duty prescribed in the law, but also the duty related thereto, but also the duty related thereto, and even if the duty is not actually performed according to the division of duties other than the duty in the past or to be in the future, a public official, such as the duty belonging to the general authority under the law, shall take charge of official duties according to his position (see Supreme Court Decisions 94Do3022, Jan. 23, 1996; 2003Do1060, Jun. 13, 2003, etc.).

According to the reasoning of the judgment below, the court below, based on the adopted evidence, found the defendant to have received two copies of a cashier’s check issued as of March 26, 2002 at the face value of KRW 1 million ( check number 1, check number 2 omitted) and received two copies of the above check as the defendant’s assertion, even if the time of exchange of two copies of the above check from around May 2002 to around June 2002, when the defendant was on duty as a competitor, and became aware of in the process of reporting unfair trade practices with respect to the non-indicted corporation from March 2002 to March 26, 202, the court below found the defendant to have received two copies of the above check as a bribe in relation to his duties, on the grounds that the defendant received two copies of the above check from the non-indicted corporation’s manufacturer or manufacturer’s duty and authority and found the defendant guilty of the above facts charged in light of various circumstances as stated in the judgment.

Examining the aforementioned legal principles and the evidence legitimately admitted by the court below in light of the records, the above fact-finding and judgment of the court below are justified.

As alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on job relationship and bribe in the bribery, the admissibility of evidence under the Criminal Procedure Act, the principle of an indictment only, or the abuse of indictment.

The defendant's ground of appeal is without merit.

2. As to the Prosecutor’s Grounds of Appeal

A. Under the latter part of Article 12(1) of the Constitution, the principle of due process provided in the latter part of Article 12(1) of the Constitution, and the fundamental right guaranteed by Article 27 of the Constitution, namely, all evidential materials are investigated and stated in the presence of a judge, and the current Criminal Procedure Act (hereinafter “Act”) provides for the principle of party-oriented trials, the principle of court-oriented trials, and the principle of directness in order to realize the right to a trial where a defendant is given

Accordingly, after a public prosecution has been instituted, all the rights of the court of the lawsuit over the prosecuted case belong to the jurisdiction of the court of the lawsuit where the case is presided over, and the suspect who is the subject of investigation exercises his/her right of defense in the position of defense as a defendant who is equal to the prosecutor, so a compulsory disposition that directly affects the fundamental human rights of the accused, such as detention, seizure, search, etc.

In addition, with respect to compulsory measures, the law provides that the court of the lawsuit shall first provide detailed provisions governing compulsory measures to be taken by the court of the lawsuit (Article 68 of the Act; hereinafter the same shall apply), compulsory measures in the investigation procedure, and in particular, with respect to search and seizure at issue in this case, the public prosecutor may conduct search, seizure, or verification by a warrant issued by the judge of the district court upon a request of the judge of the district court when necessary for criminal investigation, and the specific requirements, objects, procedures, etc. shall be applied mutatis mutandis (Article 219 of the Act). The compulsory measures in the investigation procedure and those in the trial shall be corresponded to them.

Furthermore, Article 215 of the Act provides for the detailed procedures for the request for a warrant of search and seizure under Article 215 of the Act (hereinafter “Rules on Criminal Procedure”) provides that the matters to be stated in the request for a warrant of search and seizure include the name of “suspects” and the facts constituting an offense, i.e., the gist of “suspects,” and that “suspects” should submit to “suspects” materials acknowledged as suspected of committing a crime and materials proving the need for a warrant of search and seizure (Articles 107(1) and 108(1) of the Rules), and does not provide for the entry of the personal information of “defendants” or the summary of “facts,” and there is no room to deem that the said provisions apply mutatis mutandis to the request for a warrant of search and seizure after prosecution. As such, our law and regulations do not completely provide for specific procedures for the request for a warrant of investigation agency for a warrant of search and seizure after prosecution.

Ultimately, Article 215 of the Act does not explicitly limit the time when a prosecutor can request a warrant of search and seizure before prosecution. However, in full view of the principles of due process guaranteed by the Constitution and the right to trial, the litigation structure of the current Criminal Procedure Act aiming at the principle of court-oriented trials, the principle of party-oriented trials, and the structure, language, form, and contents of relevant laws and regulations, once a public prosecution has been instituted, the public prosecutor cannot conduct a search and seizure of the accused case pursuant to Article 215 of the Act. Nevertheless, if a public prosecutor conducted a search and seizure by a warrant requested by a judge of the district court other than the court pursuant to Article 215 of the Act after instituting a public prosecution, the collected evidence is not in compliance with the legitimate procedure established to guarantee fundamental human rights and cannot be used as evidence of guilt in principle.

B. Meanwhile, even if evidence is collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act, if all circumstances related to a procedural violation committed by an investigative agency during the process of collecting evidence are comprehensively and comprehensively examined, it does not constitute a case where a procedural violation by an investigative agency infringes on the substantive contents of due process. Rather, if it is exceptional cases where the Constitution and the Criminal Procedure Act establish a procedural provision regarding criminal procedure, thereby creating a balance between the principles of due process and substantive truth investigation, and thereby promoting justice in criminal justice, the court may use it as evidence for finding guilt (see Supreme Court en banc Decision 2007Do3061, Nov. 15, 2007).

However, since such exceptional cases may cause damage to the above principles, the court should pay attention not to cause damage to the principle in the process of determining whether a specific case constitutes such exceptional cases. Furthermore, in order for the court to consider that the collected evidence may constitute an exceptional case where it can be admitted as evidence of guilt despite a procedural violation by an investigative agency, the prosecutor must prove that there are specific and special circumstances to deem such exceptional cases (see Supreme Court Decision 2008Do763, Mar. 12, 2009, etc.).

C. According to the reasoning of the judgment below, the court below found the facts charged that "the defendant received a bribe in relation to his duties after being issued a one million won cashier's check at the face value (one million won check number 3 omitted) from Defendant 2 to the same effect in the event of reporting unfair trade practices or related duties in the future at a cafeteria of March 2002 which was held by the court below, the court below held that the prosecutor's submission of the evidence corresponding thereto was not a legitimate evidence for the following reasons: (a) around December 7, 2007, when the prosecution of this case was instituted and the trial was in progress, the court below obtained a warrant of search and seizure against Defendant 2 from the judge of the district court who was not the court of the lawsuit pursuant to Article 215 of the Act; (b) one copy of the self-reliance deposit sheet, one copy of the check request and issuance prior to the issuance of the checks; and (c) three copies of the cashier's checks, which were prepared based on the above facts charged; and (d) the prosecutor's request for search and seizure or seizure without legitimate evidence.

In light of the above legal principles and records, the above fact-finding and determination by the court below are justifiable.

The judgment of the court below is not erroneous in the misapprehension of legal principles as to the permission of compulsory disposition by an investigative agency after a prosecution as otherwise alleged in the ground of appeal.

The prosecutor's ground of appeal is without merit.

3. Conclusion

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

Justices Yang Chang-soo (Presiding Justice)