Where an investigative agency presents a search and seizure warrant and conducts a search and seizure, and it is necessary to conduct a search and seizure again at the same place or object within the effective period of the search and seizure warrant after the execution thereof is completed, whether the search and seizure can be conducted again by presenting the previous search and seizure warrant (negative)

A search and seizure warrant under Article 215 of the Criminal Procedure Act is a permit issued by an investigative agency for a search and seizure, and its term of validity stated therein refers to a completion date that can be commenced. As such, if an investigative agency presents a search and seizure warrant and executes a search and seizure and completes the execution thereof, the warrant already becomes invalid after attaining the purpose thereof, and if it is necessary to search and seize the same place or object again, a new search and seizure warrant shall be issued from the court upon explaining the necessity thereof. Thus, it cannot be conducted again by presenting that the term of validity of a search and seizure warrant issued earlier remains.

Article 215 of the Criminal Procedure Act

Re-appellant

Attorneys Cha Byung-sil et al.

Seoul District Court Order 99No1 dated September 6, 1999

The order of the court below shall be reversed. The seizure disposition taken on August 27, 199 by a senior judicial police officer affiliated with the National Intelligence Service shall be revoked.

The grounds of reappeal are examined.

The lower court rejected the quasi-Appellant’s claim on August 27, 199 on the premise that, under the same warrant issued by the judge of the Seoul District Court on August 20, 199, the search and seizure warrant was permissible where it is extremely difficult for an investigative agency to anticipate all goods necessary for the maintenance of public prosecution from the time of the request for the search and seizure warrant, and where it is necessary to search and seize again at the same location as the investigation is conducted once and once, it is extremely difficult to predict the goods subject to seizure in advance due to the nature of the case, or where there is a need to search and seize again, even after the execution of the search and seizure warrant once, it constitutes the above requirements, on the same premise that the judicial police officer of the National Intelligence Service, who belongs to the Seoul District Court, conducted a search and seizure on the residence of the re-appellant on the same month and seized the goods listed in attached Table 1 of the lower judgment based on the same warrant on the same date and at the same location.

However, a search and seizure warrant under Article 215 of the Criminal Procedure Act is a permit issued by an investigative agency for a search and seizure, and its term of validity stated therein refers to a completion date that can be commenced. As such, if an investigative agency presents a search and seizure warrant and executes a search and seizure and completes its execution, the warrant already becomes invalid after attaining the purpose. If it is necessary to re- search and seizure of the same place or object due to the same reason as stated in the court below, it is necessary to explain the necessity thereof and obtain a new search and seizure warrant from the court, and it is not possible to re- search and seizure after presenting it with presenting it to the effect that the term of validity of the search and seizure warrant issued earlier remains.

Therefore, the search and seizure conducted by a judicial police officer belonging to the National Intelligence Service on August 27, 199 at the residence of the re-appellant is ultimately conducted without a lawful warrant and is illegal, and among them, the seizure of the articles listed in the attached list that can be restored should be revoked.

Nevertheless, the judgment of the court below that the judicial police officer belonging to the National Intelligence Service rendered a lawful search and seizure conducted on August 27, 1999, based on different opinions, is erroneous in the misapprehension of legal principles as to the validity of a search and seizure warrant, and such illegality has influenced the outcome. Therefore, the ground of reappeal is with merit.

Therefore, the order of the court below is reversed, and this case is sufficient to be self-reader, and the Supreme Court shall render a final judgment. As such, the judicial police officer of the National Intelligence Service, who conducted the search and seizure on August 27, 199, is unlawful as seen above, and thus, it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jack-dam (Presiding Justice)