2019Do17142 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Ameras, etc.)

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A

Prosecutor

Suwon District Court Decision 2018 3609 Decided October 31, 2019

April 9, 2020

The non-guilty part of the original judgment shall be reversed, and this part of the case shall be remanded to the District Court.

The grounds for appeal are determined.

1. Summary of the facts charged and the judgment of the court below

A. Facts of public prosecution

At around 18:09 on March 7, 2018, Defendant taken the body of victims, who might cause sexual humiliation or humiliation in the same way seven times a year from March 7, 2018 to April 18, 2018, using a cell phone (hereinafter referred to as “the instant cell phone device”) with a camera function in front of the instant cellular phone located in Goyang-si, Goyang-si. Defendant taken the body of victims against their will, as described in the attached list of crimes Nos. 1 to 4 of the lower judgment, who might cause sexual humiliation or humiliation in the same way as that of the victim’s body.

B. Judgment of the court below

The court below reversed the judgment of the court of first instance which convicted the police officer of this part of the charges on the ground that the admissibility of evidence of the cell phone device (Evidence No. 1) of this case seized by voluntary submission when the police officer arrested the defendant in the act of committing an act of committing an offense, and of the restoration photograph reproduced and printed by searching the stored information memoryd therefrom cannot be recognized. Thus, the court below reversed the judgment of the court of first instance which convicted the defendant of this part of the charges on the ground that it constitutes a case where there is no proof of a crime.

1) A seizure without a warrant under Article 218 of the Criminal Procedure Act is not permitted at the site of arrest in the act of committing an offense. 2) Even if it is possible to seize voluntarily produced articles pursuant to Article 218 of the Criminal Procedure Act at the site of arrest in the act of committing an offense, it may be doubtful that the defendant's voluntary submission of the cellular phone in the instant case is absent, but

2. Determination

A. The part that the seizure under Article 218 of the Criminal Procedure Act as to the cellular phone of this case, which is an exclusive agenda for the judgment of the court below, is unlawful is unacceptable for the following reasons. (1) A flagrant offender who is either committed or immediately after the commission of a crime subject to seizure under Article 218 of the Criminal Procedure Act at the scene of arrest in the act of committing an act of committing an offense, may be arrested without a warrant (Article 212 of the Criminal Procedure Act), and a public prosecutor or a judicial police officer, without a warrant, seize the left articles, such as a suspect, or articles voluntarily submitted by the owner, possessor, or custodian (Article 218 of the Criminal Procedure Act). In such cases, seizure without a warrant under Article 218 of the Criminal Procedure Act, such articles as the owner, possessor, etc., at the scene of arrest in the act of crime or at the scene of crime, need not obtain an ex post facto warrant (see, e.g., Supreme Court Decisions 2019Do13290, Nov. 14, 2016).

According to the aforementioned legal doctrine, even if goods are voluntarily submitted at the place of arrest, they cannot be seized pursuant to Article 218 of the Criminal Procedure Act, and the judgment of the court below was erroneous to the effect that the ex post facto warrant as prescribed by Article 217(2) of the Criminal Procedure Act should be obtained. 2) According to the records, the following process of the public trial is revealed. (1) The defendant recognized all the facts charged in this case in his written opinion presented after being served with the instant indictment, and only argued the grounds for sentencing, and argued for the same purport at the first public trial date. (2) The court below acknowledged the facts charged in this case at the first public trial after the first public trial date, and requested the public prosecutor to find ex officio whether there was any further need for the examination of the facts charged in this case or whether there was any further need to ex officio submission of evidence regarding sentencing. (3) The court below did not err in the conclusion of the judgment of the first public trial on the grounds that the defendant and the defense counsel did not present any additional grounds for the first public trial on the instant facts charged.

B. Nevertheless, the lower court determined that the admissibility of the instant mobile phone machine was not recognized on the grounds as stated in its reasoning. In so doing, the lower court erred in its judgment by misapprehending the legal doctrine on the seizure of voluntarily produced articles at the scene of arrest in the act of committing an offense, and failing to exhaust all necessary deliberations as to the voluntariness of submission of mobile phone devices, thereby adversely affecting the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, the non-guilty part of the judgment of the court below is reversed, and this part of the case is remanded to the court of 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.

Justices Noh Tae-tae

Justices Kim Jae-hyung

Justices Min You-sook of the District Court

Justices Lee Dong-won