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The judgment of the court below is reversed, and the case is remanded to Jeonju District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. The Constitution provides that “no person shall be arrested, detained, seized, searched or examined unless otherwise provided by Act (Article 12(1)); and that “no person shall be arrested or detained unless he is notified of the grounds for arrest or detention and of the right to assistance of counsel.” (Article 12(5)) and declares the principle of due process regarding arrest or detention.
In addition, the Criminal Procedure Act provides that "a prosecutor or a judicial police officer shall give him/her an opportunity to defend himself/herself when he/she arrests a suspect, referring to the summary of the offense, the reason for the arrest and the appointment of a defense counsel, and the opportunity to defend himself/herself" (Article 200-5).
(Article 213-2) Furthermore, Article 308-2 of the Criminal Procedure Act provides that "No evidence collected in violation of the due process shall be admitted as evidence" and supports that the normative power of each of the above provisions shall be maintained firmly.
In full view of these regulations, in a case where evidence is collected based on an illegal act that does not comply with due process, the admissibility of the secondary evidence acquired based on the evidence as well as the relevant evidence should be denied.
However, the above principle of exclusion of illegally collected evidence is to guarantee the fundamental human rights of the people by suppressing the illegal act in the investigation process. Thus, evidence collected in a state that the effect of an act violating due process is prevented or extinguished, even if admissibility of evidence is admitted, it does not cause an infringement on the substantial contents of due process. Therefore, there is no reason to deny admissibility of evidence.
Therefore, the contents and circumstances of the due process violation and related circumstances taken place in the process of collecting evidence are considered as a whole.