[1] Whether the seized articles collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act and the secondary evidence obtained based on such seized articles are admissible (negative in principle) and the standard for its determination

[2] The case holding that it is unlawful to recognize the admissibility of the seized article solely on the ground that the admissibility of the seized article is recognized even if the seizure procedure is unlawful, without sufficiently examining whether the alleged violation of due process was committed, although the prosecutor's search and seizure violated due process in the defendant's assertion of violation of due process

[3] The case holding that the act of public officials belonging to Jeju-do in relation to the Jeju branch office's election constitutes "participation in the planning of an election campaign" prohibited by Article 86 (1) 2 of the Public Official Election Act, where the act of preparing interview and debate materials of the candidate's broadcast company, the incumbent Jeju-do Governor, who held in the election, and conducting a preliminary exercise

[4] In a case where a public official simply implicitly or passively takes part in the planning of an election campaign for himself/herself, whether it is subject to punishment for a violation of Article 86(1)2 and Article 255(1)10 of the Public Official Election Act (negative)

[1] [Majority Opinion] (A) In order to guarantee fundamental human rights, the normative power of the Criminal Procedure Act, which has established specific standards for search and seizure procedures, should be firmly maintained so that the Constitution that declared the basis of due process and warrant requirement regarding search and seizure and can realize harmoniously the establishment of substantial truth and the ideology of the protection of rights of individuals. Therefore, evidence collected without following the procedures prescribed by the Constitution and the Criminal Procedure Act, in principle, cannot be used as evidence for conviction inasmuch as it does not follow the lawful procedures prepared to guarantee fundamental human rights. The most effective and clear response measures to restrain illegal search and seizure by an investigative agency and prevent recurrence thereof should not be used as evidence for conviction.

(B) However, in determining whether to grant admissibility of seized articles collected in violation of the procedure prescribed by the Act, the Constitution and the Criminal Procedure Act are important objectives and ideology to achieve the legitimate penal authority through the examination of substantial truth. Thus, denying admissibility of such evidence uniformly on the sole ground that it is evidence collected without complying with the procedure prescribed by the Constitution and the Criminal Procedure Act, cannot be deemed that the same conforms to the purport of formulating a procedural provision regarding criminal procedure. Therefore, in cases where all circumstances related to the procedural violation committed by an investigative agency during the process of evidence collection, namely, the purport and content and degree of the procedural provision, specific details and possibility of violation, degree of evasion, relationship between the right and legal interest to be protected, degree of relation between the defendant and the investigative agency, degree of causation between the procedural violation and the collection of evidence, and awareness and intent of the investigative agency, it does not constitute cases where the procedural violation of the investigative agency infringes on the substantive substance of due process, and rather, it should be deemed that the admissibility of evidence does not conform to the overall procedural provision concerning criminal procedure and its collection of evidence, and if it did not go against the purpose of evidence collection of evidence.

[Concurring Opinion by Justice Yang Sung-tae, Justice Kim Nung-hwan, and Justice Ahn Dai-hee] In determining the admissibility of seized articles collected in violation of the legal procedure, balance should be maintained between the request for due process and the request for the investigation of substantial truth. However, the standard presented by the Majority Opinion is not clear, and the principle of exclusion of illegally collected evidence is excessively strict, thereby making it impossible or excessively difficult to achieve another goal of criminal justice, which is the appropriate exercise of penal authority through the investigation of substantive truth. Therefore, the admissibility of seized articles in violation of the collection procedure, i.e., all circumstances related to the procedure for the collection of evidence, namely, the purport and degree of the procedural provision, specific course and degree of violation, the nature and degree of the right to protect the procedural provision or legal interest, and the perception and intent of the investigative agency, etc., if it is deemed that the ground for illegality in the procedure for the collection of evidence deviates from the spirit and intent of warrant requirement, and it should be denied if it is deemed that there is a serious reason to deny the admissibility of evidence.

[2] The case holding that it is unlawful to recognize the admissibility of evidence of the seized article solely on the ground that the admissibility of evidence of the seized article is recognized even if the seizure procedure is unlawful without sufficiently examining the grounds for illegality such as the seizure of the article that is not recorded as the articles to be seized in the warrant, omission of presentation of the warrant, substantial delay in the procedure for preparation and delivery of the list, etc., although the prosecutor asserted that the evidence collected as a result of the search and seizure of the alleged facts in violation of due process was inadmissible as it violated due process

[3] The case holding that the act of the public officials belonging to Jeju-do in relation to the Jeju branch's election constitutes "an act of participating in the planning of an election campaign" prohibited by Article 86 (1) 2 of the Public Official Election Act, where the incumbent Jeju-do Governor, who held the election, prepared the interview and debate materials of the candidate's broadcast company and held the preliminary exercise

[4] Article 86 (1) 2 of the Public Official Election Act prohibits persons in public positions, such as public officials, from participating in the planning of election campaigns or in the implementation of such planning. Article 255 (1) 10 of the Public Official Election Act punishs “any person who commits or causes another person to commit an act in violation of Article 86 (1) 2,” and Article 255 (1) 10 of the Public Official Election Act punishs “any other person who commits or causes another person to commit an act in violation of Article 86 (1) 2.” Thus, the fact that other public officials merely implicitly

[1] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 215 and 307 of the Criminal Procedure Act / [2] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 215 and 307 of the Criminal Procedure Act / [3] Articles 86(1)2 and 255(1)10 of the Public Official Election Act / [4] Articles 86(1)2 and 255(1)10 of the Public Official Election Act

[1] Supreme Court Decision 87Do705 delivered on June 23, 1987 (Gong1987, 1265), Supreme Court Decision 93Do318 delivered on February 8, 1994 (Gong1994Sang, 1043), Supreme Court Decision 96 seconds8 delivered on May 14, 1996 (Gong1996Ha, 1957), Supreme Court Decision 200Do1513 delivered on November 26, 2002 (overruled), Supreme Court Decision 2006Do3194 Delivered on July 27, 2006) / [3] Supreme Court Decision 2007Do3194 Delivered on May 14, 1996 (overruled), Supreme Court Decision 2007Do3194 Delivered on July 27, 2006

Kim Tae-tae et al.

Defendant Kim Tae-tae and seven others and Prosecutor (Defendant Kim Tae-hwan et al., Counsel for the defendant-appellant and four others)

Law Firm, Kim & Lee LLC et al.

Gwangju High Court Decision 2007No85 decided April 12, 2007

Of the judgment of the court below, the part against Defendant Kim Tae-tae, the part against Defendant 2, 4, 6, 7, and 9, and the part concerning Defendant 6’s recommendation of Defendant 30 telephone data personnel, and the part concerning Defendant 2, and the part concerning Defendant 9’s recommendation of a person in charge of the medium-dong community of the Jung-dong against Defendant 2, and this part of the case is reversed and remanded to the Gwangju High Court. The appeals by Defendant 3, 8

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal by Defendant Kim Tae-tae, Defendant 2, 4, 6, 7, and 9

A. The Constitution of the Republic of Korea provides that “No person shall be subject to search and seizure ....” (The latter part of Article 12(1) of the Constitution of the Republic of Korea) and that “in the case of arrest, detention, seizure or search, a warrant issued by a judge upon the request of a prosecutor according to lawful procedures shall be presented: Provided, That where a person is a flagrant offender, or where a person is a flagrant offender and is likely to escape or destroy evidence, a warrant may be requested ex post facto (Article 12(3)), and declares the basis of due process and warrant requirement regarding search and seizure.”

In addition, the Criminal Procedure Act and the rules on criminal procedure, which embody the due process of search and seizure as well as the warrant requirement, provide for detailed procedures for search and seizure by an investigative agency. According to this principle, search and seizure by an investigative agency shall be based on a search and seizure warrant issued by a judge. The warrant must specify the name of the suspect, the articles to be seized, the place, body and articles to be searched, the reason for search and seizure, etc. (Articles 215, 219, and 114(1) of the Criminal Procedure Act, Article 58 of the Rules on Criminal Procedure). A warrant must be presented to the person subject to disposition. The body or articles of a non-suspect can be searched only when it is recognized that the seized articles exist (Articles 219, 109(2), and 118 of the Criminal Procedure Act). In addition, the execution of a warrant must be notified to the participating person, such as the suspect, etc., if the execution place is a public office, and shall be notified to the person in charge, and Article 1219(1) of the Act.

In order to guarantee fundamental human rights, the normative power of the Criminal Procedure Act, which has established detailed standards for search and seizure procedures, should be maintained firmly so that the Constitution declaring the basis of due process regarding search and seizure and warrant requirement and can realize harmoniously the establishment of substantial truth and the ideology of the protection of individual rights. Therefore, evidence collected without following the procedure prescribed by the Constitution and the Criminal Procedure Act, is not in compliance with the lawful procedure prepared to guarantee fundamental human rights, and thus, should not be considered as evidence of conviction in principle.

Search and seizure, which is a compulsory disposition by a false investigative agency, is not so likely to infringe on the rights or legal interests of the persons concerned in the process, so it should be conducted strictly in compliance with the procedures prescribed by the Constitution and the Criminal Procedure Act. The most effective and clear response measures to restrain search and seizure by an investigative agency which does not comply with the procedural provisions and prevent recurrence should not be taken as evidence of conviction as well as the evidence collected through it.

Unlike this, Supreme Court Decisions 68Do932 delivered on September 17, 1968; 87Do705 delivered on June 23, 198; 93Do318 delivered on February 8, 1994; 96 initial8 delivered on May 14, 1996; 200Do1513 delivered on November 26, 2002; 2006Do3194 delivered on July 27, 2006; etc., which held that the seized articles are admissible as evidence, even if the seizure procedure is unlawful, shall be modified to the extent that they are inconsistent with this Opinion.

However, in a final determination of admissibility of seized articles collected without following the procedure prescribed by the Act, since the Constitution and the Criminal Procedure Act are important objectives and ideology to achieve the legitimate penal authority through the investigation of substantial truth, denying admissibility of such evidence uniformly on the ground that it is evidence collected without following the procedure established formally and without following the procedure cannot be deemed that the Constitution and the Criminal Procedure Act are in accord with the purport of formulating the procedural provisions regarding criminal procedure. Therefore, the same applies to cases where all circumstances related to the procedural violation committed by an investigation agency during the process of collecting evidence, namely, the purport and content of the procedural provisions, the degree and possibility of the violation, specific details and degree of the violation, the degree of the violation, the relationship between the right and legal interests to be protected, the relationship between the defendant and the investigation agency, and the awareness and intent of the investigation agency, are examined comprehensively and comprehensively. Rather, the exclusion of admissibility of evidence does not constitute a case where the procedural violation of the investigation agency infringes on the substantive substance of due process, and the Criminal Procedure Act establishes the procedural provisions concerning criminal procedure and seeks harmony between the substantive truth and the substantive justice of evidence collected and thus, it cannot be acknowledged as evidence.

B. In the instant case, Defendant Kim Tae-tae, Defendant 2, 4, 6, 7, and 9 consistently conducted by the prosecutor from the date of prosecution to the effect of the search and seizure warrant, the search and seizure conducted by the prosecutor is unlawful as it did not comply with the various procedural provisions prescribed by the Act regarding the presentation and participation in the presentation and execution of the warrant, preparation and delivery of the list, etc., and thus, it should not be considered as evidence for conviction. Accordingly, whether there was any violation of the procedural provisions prescribed by the Constitution and the Criminal Procedure Act in the course of collecting the seized, thereby making it the most key issue of the instant case.

If so, the court below should have examined whether the above defendants violated the procedural provisions under the Constitution and the Criminal Procedure Act as alleged by the above defendants in the process of collecting the seized articles of this case. In particular, the court below should have examined whether the seizure of articles not stated in the warrant among the specific illegal grounds alleged, the omission of the procedure for presenting the warrant, and the considerable delay in the procedure for preparing and delivering the list of seized articles. Nevertheless, even if the seizure procedure is illegal without sufficient examination as to this point, the court below recognized the admissibility of the seized articles of this case and adopted it as sufficient evidence to acknowledge the admissibility of evidence of the seized articles of this case and recognized the criminal liability as to the guilty part of the facts charged of this case against the above defendants by adopting it as sufficient evidence to acknowledge the admissibility of evidence of the seized articles of this case for the mere reason that it is recognized as the admissibility of evidence of the seized articles of this case, and it affected the judgment.

Therefore, without further examining the remainder of the grounds of appeal by Defendant Kim Tae-tae, Defendant 2, 4, 6, 7, and 9, the conviction part against the above Defendants cannot be maintained.

2. As to Defendant 3 and 8’s grounds of appeal

Article 86 of the Public Official Election Act provides that "an act that affects the election" rather than "an act that affects the election" shall be interpreted as participating in the formulation of any plan to efficiently carry out election campaigns (see Supreme Court Decisions 2003Do2932, Mar. 25, 2004; 2004Hun-Ba33, Jun. 30, 2005).

In the same purport, the court below is just in holding that Defendant 3 and 8 who are public officials were participating in the planning of election campaign under Article 86 (1) 2 of the Public Official Election Act, since all acts of preparing interview and interview data on the expected issues to be discussed in the debate in order to refund Defendant Kim Tae-do Do Governor who is scheduled to attend the debate of the broadcasting company held by inviting Defendant 3 and 8 who is a public official, or acts of preliminary exercise are used in the formulation of a plan to efficiently carry out the election campaign by Defendant Kim Tae-tae and thus it would affect the election, and there is no error in the misapprehension of legal principles

In addition, comprehensively taking account of all the circumstances acknowledged by the evidence duly admitted by the court below, the above Defendants’ participation in the election campaign planning cannot be deemed a legitimate act. The grounds of appeal by the above Defendants are dismissed.

3. As to the Prosecutor’s Grounds of Appeal

A. Articles 312(1) and 313(1) of the Criminal Procedure Act provide that the documents stipulated in the above provision may be admitted as evidence when they are recognized or attested by the person who made the original statement or the person who made the original statement. Here, the authenticity refers to the formation of formal authenticity, such as seal, signature, and seal, and the actual authenticity that the content of the documents is recorded as it is or written by the person who made the original statement. Thus, in cases where the person who made the original statement or prepared the documents asserts that the content of the documents is not written as it is or written by the person who made the original statement, it shall not be admitted as evidence (see Supreme Court en banc Decision 2002Do537, Dec. 16, 2004).

On the other hand, in order to recognize multiple criminal acts as a single crime by combining several criminal acts, each criminal act should be deemed as a single criminal act in addition to the unity of each criminal act, where several criminal acts can be assessed as a single crime, such as when there is time and place relevance between each criminal act and the method of crime (see Supreme Court Decision 2005Do1952, Sept. 15, 2005, etc.).

In the same purport, the court below's decision is just in holding that the admissibility of documents prescribed in Articles 312 (1) and 313 (1) of the Criminal Procedure Act, which the person making the original statement or some of the defendants who made the original statement, denies the authenticity of the document, is an inclusive crime within the scope that can be evaluated as one crime, and the act beyond the scope of the single crime is recognized as a substantive concurrent crime, and there is no violation of law such as misunderstanding of legal principles as otherwise alleged in the ground of appeal. The Supreme Court precedents pointed out in the ground of appeal

B. Article 86 (1) 2 of the Public Official Election Act prohibits persons in public positions, such as public officials, from participating in the planning of election campaign or in the implementation of such planning, and Article 255 (1) 10 of the Public Official Election Act punishs “persons who commit or cause another person to commit an act violating Article 86 (1) 2”. Thus, the public official’s participation in the planning of election campaign on his/her behalf cannot be deemed to be subject to punishment under the above Article solely on the fact that other public officials simply implied or passively enjoyed other public officials’ participation in the planning of election campaign on his/her behalf. The decision of the court below to this purport is just, and there is no illegality as otherwise

C. The Prosecutor’s remainder of the grounds of appeal is ultimately erroneous for the selection of evidence and fact-finding, which belong to the exclusive jurisdiction of the lower court as a fact-finding court, and all of them are not acceptable, and the lower court’s judgment does not err by violating the rules of evidence, etc.

4. Conclusion

Therefore, among the judgment of the court below, the guilty part against Defendant Kim Tae-tae, Defendant 2, 4, 6, 7, and 9 cannot be exempted from reversal. The guilty part against Defendant 6 regarding Defendant Kim Tae-tae's 30 telephone data, and the guilty part concerning Defendant 6's 7 telephone data, and the guilty part concerning Defendant 2 and 9 related to the recommendation of a person responsible for the area in charge of Jungdong-dong, which are related to Defendant 2 and 9, shall be reversed together with the aforementioned guilty part, and this part of the case shall be remanded to the court below for a new trial and determination, and the appeal by Defendant 3, 8, and prosecutor is all dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for the separate opinion by Justice Kim Tae-tae, Defendant 2, 4, 6, 7, and 9's grounds of appeal by Justice Yang Sung-tae, Yang Sung-tae, Kim Nung-tae, and Justice Ahn Dai-hee.

5. Concurrence by Justice Yang Sung-tae, Justice Kim Nung-hwan, and Justice Ahn Dai-hee

A. We agree with the Majority Opinion that the admissibility of evidence collected without following the procedure prescribed by the Constitution and the Criminal Procedure Act should be restricted. However, while the Majority Opinion deems that evidence illegally collected may not be used as evidence of conviction in principle and only exceptional cases may be admitted as evidence of conviction. In full and comprehensive examination of all circumstances related to the violation of procedure in relation to the exception criteria, it does not constitute a case where a criminal investigation agency’s procedural violation infringes on the substantial contents of due process, and rather, excluding admissibility of evidence would result in a violation of the principle of due process and substantial truth and the purport of realizing criminal justice by preparing a procedural provision concerning criminal procedure and promoting a harmony between the principle of due process and substantial truth and by promoting the realization of criminal justice, we cannot agree with the part of the judgment that the evidence can be used as evidence of conviction

B. First of all, it is difficult to understand the meaning and content of “a violation of procedures by an investigative agency does not constitute a case where the substantial content of due process is violated.” Furthermore, in order to determine whether to exclude the admissibility of seized articles in violation of the collection procedure brings about a result contrary to the realization of criminal justice justice through the discovery of substantial truth, the conclusion at the time of assuming that the admissibility of seized articles is recognized as admissible and the conclusion at the time of assumption that the admissibility of such seized articles is not recognized should be compared and examined. It cannot be said that the end is prior to the conclusion.

More fundamentally, the fundamental purpose of the Constitution and the Criminal Procedure Act, including the restriction on the principle of warrant requirement and the admissibility of evidence, is to ensure due process for the prevention of infringement of fundamental human rights, so that the procedures are to be strictly observed. This point is as emphasized by the Majority Opinion. On the other hand, as recognized by the Majority Opinion, in order to protect individual legal interests, maintain public peace and order, and secure order by ascertaining substantial truth, and by exercising punishment rights in a reasonable manner, as well as to pursue criminal justice. In a case where there is an error in the process of collecting seized articles, whether to recognize the admissibility of evidence should be determined by taking into account the purport and ideology of the Criminal Procedure Act and the Criminal Procedure Act. The issue of whether to acknowledge the admissibility of seized articles ought to be determined by taking into account the purpose of the Constitution and the Criminal Procedure Act, and the purpose of the Criminal Procedure Act and the ideology of the Criminal Procedure Act, regardless of whether it is unlawful in the process of collecting the seized articles, and on the other hand, there is a risk that infringement of individual fundamental rights through an unlawful investigation and impairing nature of judicial justice, and that it should not be justified.

C. Therefore, the admissibility of the seized articles in violation of the collection procedure is denied in a case where the court recognizes that the grounds for the procedure for collecting the seized articles are so serious that it should deny the admissibility of the evidence, considering all circumstances related to the procedure for collecting the evidence, i.e., the purport of the procedural clause and its contents and degree of the violation, specific course and possibility of avoiding the violation, the nature and degree of infringement of the right or legal interests to be protected, and the perception and intent of the investigation agency, etc. in whole and in a comprehensive manner, the evidence is inadmissible in a case where it is recognized that the grounds for the procedure for collecting the seized articles are in violation of the warrant requirement spirit and purport, and where

In the past, without considering these issues, the Supreme Court has taken the view that, based on the nature of the seized evidence and the holding of unsatisfy, it has been admissible regardless of whether the collection procedure is illegal or not, and the degree of its illegality. This is more likely to allow the infringement of fundamental rights of individuals through an illegal investigation and damage the integrity of the judiciary, and it is no longer possible to maintain it as it is and it should be modified as above.

For the same reason, I will suggest a separate opinion as to the criteria for excluding the admissibility of collected seized articles without following the procedure prescribed by law.

Chief Justice Lee Yong-chul (Presiding Justice)