(영문) 대법원 2020.11.26.선고 2020도10729 판결

The non-guilty part of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the Gu Government District Court.

Reasons

The grounds of appeal are examined.

1. A. A. When an investigative agency executes a search and seizure warrant, the person against whom the warrant was served or his/her defense counsel may participate in the execution thereof (Articles 219 and 121 of the Criminal Procedure Act). In cases where it takes a storage device, a nives, or a device that contains digital information into its office, etc. (hereinafter referred to as “duplicates”), and takes an adequate measure to guarantee the opportunity for participation of the person against whom the warrant was served or his/her defense counsel, and to prevent the arbitrary reproduction of digital information irrelevant to the suspected criminal fact, barring special circumstances, such as where it is impossible to print out and copy the storage device within the scope of the search and seizure process, or where it is deemed that the purpose of guaranteeing participation of the person against whom the warrant was served cannot be seen as substantially infringed in light of the nature and content of the process during which the warrant was served, etc., the warrant principle and due process should be complied with. This also applies to the case where the investigative agency en banc Decision 2015Da1610197, supra.

Meanwhile, the right of attorney to participate in the execution of a warrant of search and seizure under Articles 219 and 121 of the Criminal Procedure Act is an inherent right given to the attorney for the protection of the person against whom the warrant is served. Therefore, even if the person against whom the warrant of search and seizure was served clearly stated that he/she does not participate in the execution of the warrant of search and seizure, barring any special circumstance, the attorney should separately guarantee the opportunity to participate in the execution of the warrant of search and seizure by notifying

B. Article 308-2 of the Criminal Procedure Act provides that “Any evidence collected in breach of the lawful procedure shall not be admitted as evidence.” This means that the principle of exclusion from evidence illegally obtained in order to realize the constitutional ideology of guaranteeing the fundamental human rights of citizens by suppressing any illegal act in the investigation process, including illegal search and seizure, and preventing recurrence (see, e.g., Supreme Court Decisions 2010Do2094, Mar. 14, 2013; 2018Do20504, Jul. 11, 2019). Article 12 of the Constitution declares the due process and the warrant principle related to search and seizure in order to guarantee fundamental human rights, and the Criminal Procedure Act provides detailed criteria for the search and seizure procedure so that the ideology of real truth and the protection of rights of individuals can be achieved in harmony. As such, it is necessary to maintain the normative power of the Constitution and the Criminal Procedure Act, as well as evidence obtained without following lawful procedures, and it should not be admitted as evidence that has been admitted as evidence in principle.

However, denying admissibility of evidence solely on the ground that it is evidence collected in violation of the procedure prescribed by the Act does not conform to the purpose of the Constitution and the Criminal Procedure Act. This is because the realization of legitimate penal authority through the discovery of substantial truth is an important purpose and ideology that the Constitution and the Criminal Procedure Act intends to achieve through criminal procedure. If an investigation agency’s procedural violation does not constitute a violation of the substance of due process, and rather, the Constitution and the Criminal Procedure Act are deemed to bring about a result contrary to the intent of promoting harmony between the principle of due process and substantive truth and real justice in criminal justice through the formulation of procedural provisions, the court should be deemed to have used as evidence to acknowledge guilt. Whether it is reasonable should be determined as evidence of all circumstances related to an investigation agency’s violation in the process of evidence collection, namely, the purport and degree of the procedural provision, specific details and degree of violation, the nature and degree of infringement of the right and legal interest to be protected, the relationship between such right and legal interest, the relationship between the procedure and the defendant, and the awareness and intent of the investigation agency, etc., based on the evidence collection and evidence as evidence collected.

2. A. The gist of the facts charged in the instant case is as follows.

In 2019, the Defendant: (a) attached a small-sized camera with a tape to the outside of a garbage tank in the breath column; (b) attached the auxiliary exhauster connected to the said camera inside the garbage tank; (c) taken the name unexploded women’s turbine and turbine in the above toilet from around 2013 to 296 times in total, as indicated in No. 1 to 296 of the crime list in the holding of the lower judgment, the Defendant taken photographs of the victim’s turbine and turbine on a total of 296 occasions from around 2013 to 2019, by using a tape to the outside of the garbage tank; and (d) attached the auxiliary exhauster connected to the said camera inside the garbage tank; and (e) applied a video camera; and (e) taken the body of another person who may cause sexual humiliation or sense of shame by using a mechanical device having a similar function.

B. For the following reasons, the lower court reversed the first instance judgment convicting the Defendant on this part of the facts charged and rendered a not guilty verdict.

1) On October 30, 2019, an investigative agency violated due process by executing a search and seizure warrant by searching, copying, and printing storage devices at an investigative agency’s office without notifying Defendant’s public defender of the time and place of execution in advance.

2) Considering the fact that the Defendant was detained at the time and the importance of the participation procedure as prescribed in Articles 219 and 121 of the Criminal Procedure Act, the above violation of due process is heavy.

3) Therefore, the dynamic image closures, etc. collected through illegal search and seizure cannot be used as evidence pursuant to Article 308-2 of the Criminal Procedure Act. The confession of the defendant and the confession or the sole evidence of this part of the facts charged cannot be used as evidence of guilt pursuant to Article 308-2 of the Criminal Procedure Act or Article 310 of the Criminal Procedure Act.

3. The above determination by the court below is difficult to accept for the following reasons.

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) around 09:00 on October 25, 2019, Nonindicted Party 1’s senior judicial police officer, who belongs to the △△△△ Police Station, seized one unit of the main body of the computer owned by the Defendant (hereinafter “instant computer”) on the basis of a warrant of inspection of search and seizure issued by the judge of the △△△△ District Court (hereinafter “instant warrant”) at the Defendant’s dwelling in the Defendant’s dwelling, and one unit of the cellular phone (hereinafter “instant cell phone”) at the police station.

2) At the time, the Defendant participated in the process of sealing digital devices and storage media, and confirmed that there is no error in the seals, received notice that he may participate in the process of removing seals, acquiring copies, searching, copying, and printing digital devices, storage media, or reproductions, and marked "V" on the part stated as "I will not participate in the above process," and signed and sealed.

3) In the first police interrogation conducted immediately thereafter, the Defendant stated that, from four to five years ago, the Defendant set up a Makamera, which was purchased via the Internet in the toilet box, such as a kitchen and singing room, taken the women’s sound, etc., and stored the video on the hard disc of the instant computer.

4) On October 25, 2019, Nonindicted Party 2, who belongs to the △△△△ Police Station, discovered a number of video files, etc., which appears to have been taken by the Defendant in the luxa, after searching for the hard disks of the instant computer on October 25, 2019, and preparing an investigation report containing the purport thereof, and attaching photographs of the luxa screen in which the video files were stored.

5) Meanwhile, on October 25, 2019, the prosecutor filed a request for detention warrant against the Defendant, and on October 26, 2019, the judge of the Jung-gu District Court appointed Nonindicted 3 as the Defendant’s public defender and issued the detention warrant following the suspect examination against the Defendant.

6) On October 29, 2019, the Defendant stated that, at the second police interrogation, from around 2011 to 2019, the Defendant had taken the body of another person by installing Mameras in a toilet located in a total of five places, including each place of crime indicated in the instant facts charged, such as a hospital, singing room, etc., and specified the place of crime by year.

7) On October 30, 2019, Nonindicted 1’s background, Nonindicted 4’s slope, and Nonindicted 2’s compactbook, which belong to the △△△△ Police Station, searched three hard diskss installed in the instant computer at their respective offices, and printed out the reproduction screen (one page for each screen file) of the illegal screen pictures found by each of them, and cutting out the relevant video files together (hereinafter “the output of the instant case”).

8) However, the investigative agency did not give prior notice to the defendant's public defender on the search and reproduction of the computer of this case and the production procedure of output of this case. The defendant or the above public defender did not participate in the above procedure.

B. Examining the above facts in light of the legal principles as seen earlier, even if the Defendant expressed to the investigative agency that he would not participate in the process of searching, copying, and printing the computer of this case, the investigative agency did not provide the Defendant’s defense counsel prior to searching, copying, and printing the computer of this case, which is a storage device, at the investigative agency office on October 30, 2019, with an opportunity to participate in the above procedure by notifying the Defendant’s public defender of the date and place of execution.

Therefore, the lower court is justifiable to have determined that the investigative agency violated the seizure procedure of this case, and the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the nature of attorney’s right to be present. (1) However, in full view of all the following circumstances revealed through the above facts and records, it is sufficient to deem that the above procedural violation by the investigative agency does not constitute a violation of the substantive contents of due process, and rather, excluding the admissibility of evidence collected through the execution of the warrant of this case constitutes an exceptional case assessed as going against the purpose of realizing the justice of criminal procedure by preparing a procedural provision for criminal procedure and promoting harmony between the principle of due process and the substantial truth inquiry, and thereby

A) On October 25, 2019, an investigative agency confirmed that the Defendant, who was the sole participant as the only participant at the time of seizure, would not participate in the process of searching, copying, and printing the computer of this case, and started searching for the computer of this case. At the time of the above searching, the Defendant’s statement that “at the time of the search,” “the video is stored on the hard disc of the computer of this case.”

B) After that time when the Defendant’s public defender was appointed, it seems that the investigative agency had been aware of the position of the Pool where the digital information subject to seizure was stored by proceeding to a certain degree of search search for the computer of this case.

C) The defendant’s state appointed defense counsel did not inquire about the execution status of the instant warrant to an investigative agency or request the defendant to participate in the process.

D) Despite the intent to waive or refuse the participation of the person subject to the seizure at the time of the execution of the instant warrant, there is no precedent or internal guidelines within the investigative agency regarding the fact that a separate advance notice should be given to the selected or selected counsel after the commencement of the search and seizure procedure.

E) During the process of executing the instant warrant, an investigative agency seized a video recording recording the body of the victims from 201 to 200 persons, which was installed in a toilet, such as a voice room, singing room, etc., and prosecuted the crimes on 296 items among them (the instant charges are the issues charged). The Defendant, at an investigative agency and a court, led to the confession of all the above crimes.

2) If so, the lower court should have carefully determined whether it constitutes an exception to the principle of exclusion of illegally collected evidence, comprehensively taking into account the following: (a) the process of search and seizure in accordance with the instant warrant; (b) the relevant provision regarding the procedure for seizure of electronically stored information, the purport of proving seized evidence; (c) the process leading up to the violation of the procedure; and (d) the perception and intent of the investigative agency as to the process of the violation

Nevertheless, solely for the reasons indicated in its holding, the lower court concluded that the evidence collected through the search and seizure under the warrant of this case cannot be used as evidence of guilt and acquitted the instant facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on exceptions to the principle of exclusion from illegally collected evidence, thereby failing to exhaust all necessary deliberations. The Prosecutor’s grounds of appeal assigning this error are with merit

4. Therefore, the non-guilty part of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.