[1] In a case where an investigative agency obtained information about a trader of credit card sales slips from a financial company, etc. without a judge's warrant, whether such collected evidence is admissible (negative in principle)

[2] Where an investigative agency obtained information about a trader of sales slips without a judge's warrant, circumstances that exceptionally recognize the admissibility of secondary evidence, such as confession of a suspect or a third party's statement about criminal injury collected based on such information, can be admitted

[1] In order for an investigative agency to obtain “transaction information, etc.” under Article 4(1) of the Act on Real Name Financial Transactions and Confidentiality for criminal investigation purposes, a judge’s warrant is required, and since information about a trading titleholder of sales slips issued by a “financial company, etc.” when trading goods by credit card constitutes “transaction information, etc.” under the Act on Real Name Financial Transactions and Guarantee of Secrecy, it should be based on a warrant issued by a judge even where an investigative agency requests such information to a financial company, etc., even if the investigative agency requests such information. Nevertheless, if an investigative agency obtained information about a trading titleholder of sales slips without a warrant, such collected evidence constitutes “information collected without due process” under Article 308-2 of the Criminal Procedure Act and cannot be deemed as evidence of guilt.

[2] In a case where an investigation agency obtained information about a trader of sales slips without a judge's warrant, the second evidence collected based on such information, for example, in determining whether a confession of a suspect or a third party's statement about criminal injury can be used as evidence of conviction, circumstances can be deemed that the investigation agency does not obtain evidence by intentionally avoiding the spirit of warrant requirement, and where the investigation agency again made a confession of the same content even after a considerable period of time has elapsed since the suspect who was identified as an offender was released from the above information, or voluntarily submitted the damaged items of the crime to an investigation agency, the circumstances that were made by an independent third party's statement from a confession made under the arrest of the second party, etc., are considered to fall under ordinary circumstances that recognize the admissibility of evidence.

[1] Article 4 (1) of the Act on Real Name Financial Transactions and Confidentiality; Article 308-2 of the Criminal Procedure Act / [2] Article 4 (1) of the Act on Real Name Financial Transactions and Confidentiality; Article 308-2 of the Criminal Procedure Act

Defendant

Defendant

Attorney Park Jong-sung

Daegu District Court Decision 2012No2423 Decided October 19, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 4(1) of the Act on Real Name Financial Transactions and Confidentiality (hereinafter “Act on Real Name Financial Transactions”) provides that “No person engaged in a financial company, etc. shall provide or divulge information or data about the details of the financial transaction (hereinafter “transaction information, etc.”) to any third party without a written request or consent from a nominal holder (in the case of a trust, a truster or beneficiary), and no person may request a person engaged in a financial company, etc. to provide transaction information, etc.: Provided, That the same shall not apply in any of the following cases where a person provides or demands the provision of transaction information, etc. to the minimum extent necessary for the purpose of use.” The provision of transaction information, etc. according to a warrant issued by a court or a judge (Article 1) does not provide exceptions if an investigative agency requests transaction information, etc. for the purpose of criminal investigation. Accordingly, a judge warrant is required in order to obtain “transaction information, etc.” for the purpose of criminal investigation, and if an investigative agency requests information from a trading titleholder issued by a credit card company, etc. without a warrant, it shall be deemed as evidence collected by a judge.

However, in exceptional cases where evidence is collected in violation of the procedure prescribed by the Act does not constitute a case where the act of violation of the procedure of an investigative agency infringes on the substantive contents of due process. Rather, the exclusion of admissibility of evidence does not go against the principle of due process and substantial truth-finding and thereby would bring about a result contrary to the intent of realizing criminal justice, the court may use the evidence as evidence for finding guilt (see Supreme Court en banc Decision 2007Do3061, Nov. 15, 2007, etc.). Furthermore, when the court finally determines whether to recognize admissibility of secondary evidence, all circumstances related to the collection of primary evidence, i.e., the purport of the procedural provision and its degree of violation, specific details and possibility of evasion, the nature and degree of infringement of the right or legal interest to protect the procedural provision, the relationship between the defendant and the procedural violation, the degree of causation between the investigation agency and the evidence collection, and the awareness and intent of the investigative agency, etc., based on the primary evidence, the court should first consider all circumstances related to the collection of evidence again 20130.

Therefore, in a case where an investigative agency obtained information about a trader of sales slips without a judge’s warrant, the second evidence collected based on such information, for example, whether a confession of a suspect or a third party’s statement about criminal injury can be used as evidence of conviction should also be determined by the above legal principle. Circumstances that can be seen as not securing evidence by intentionally avoiding the spirit of warrant requirement, such circumstance may be deemed as falling under the circumstances that the investigative agency again made an identical confession even after a considerable period of time has elapsed since the suspect who was identified and arrested as a criminal was released from the above information, or voluntarily submitted to the investigative agency the damaged items of the crime, and the circumstance that the second evidence was made by an independent third party’s statement from the confession, etc. that was made while the collection of the second evidence was arrested, can be deemed as constituting evidence admissibility of the second evidence.

2. According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which convicted the victims of the instant facts charged by adopting the Defendant’s statement in the court of first instance and the statement of the victims of the first, second, and third crimes as evidence.

However, according to the evidence adopted by the court of first instance on February 1, 2012, the police officers belonging to the Daegu Jung-gu Police Station who received a report on theft from the victim non-indicted 1 on the crime scene (location 1 omitted) and found sales slips issued by non-indicted 2 Co., Ltd. (hereinafter "financial company, etc.") which were located within the 3rd Daegu Jung-gu, Daegu-gu, Seoul-gu, which was the crime scene, on the 2nd of the crime scene. The above police officers were present at the 2nd of the 2nd of the 1st of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 3nd of the 2nd of the 2nd of the 2nd of the 3th of the 2nd of the 2nd of the 2nd of the 2nd of the 3th of the 2nd of the 2nd of the 2nd of the 2nd of the 3th of the 2nd of the 2nd of the 2nd of the 3th of the 3th of the 3th of the suspect.

In light of the above legal principles, in this case, the investigative agency's measures to obtain information on the trade name of the sales slip as above without the judge's warrant are illegal. Thus, the admissibility of evidence collected through such unlawful procedures should be denied in principle, and therefore, the court below's measures that maintained the first instance court's decision that recognized the admissibility of evidence without any special review and determination as to the admissibility of evidence collected through such process cannot be deemed appropriate.

However, the confession in the court of first instance of the defendant is partly identical to the first confession of the defendant who was in custody by the investigation agency after ascertaining information about the person under whose name the transaction was conducted without the judge's warrant. However, in light of all the circumstances as seen earlier prior to the confession in the court of first instance until the confession in the court of first instance, in particular, the confession was made at the time of the third police interrogation conducted after the dismissal of the defendant's detention warrant. The confession in the court of first instance of the whole of the crime of this case was made at will at the time of the first confession at the time of three months after the first confession, in view of the whole and in a comprehensive manner, it should be deemed as a case where it can be admitted as evidence for conviction.

Furthermore, in light of all the circumstances as seen earlier until the statement was made, namely, the fact that the investigation agency sent official documents to the card company of this case to obtain information about the trader of sales slips, it seems not to have attempted to avoid the spirit of warrant requirement under the Act on Real Name Financial Transactions in order to obtain information about the trader of sales slips, and the fact that the written statement about the preparation of the victims of the second and third criminal acts appears to have voluntarily stated their damage from the existing investigation procedure, independent of the victims at the end of about three months from the date of the crime, and over eleven months from the date of the crime. In particular, in light of the written statement about the third criminal acts, it is reasonable to view that the above evidence also constitutes a case where it can be used as evidence for conviction, considering the fact that the victims, a third party, were voluntarily stated from the existing investigation procedure at the time of the crime, regardless of the fact that the defendant had already been released, and the damage was collected only after arbitrarily submitted to the investigation agency.

In addition, according to the remaining evidence duly adopted by the first instance court, including the defendant's statement in the court of first instance and the statement on the second and third criminal acts, which are admissible as evidence as seen above, all the facts charged in this case are sufficient to be found guilty. Thus, the conclusion of the lower court's judgment that found the defendant guilty of the facts charged in this case is justifiable, and as seen earlier, the error of the lower court did not affect

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

Justices Kim Yong-deok (Presiding Justice)