[1] Whether “the need for arrest” is required for the arrest of a flagrant offender (affirmative), and the standard for determining whether a flagrant offender satisfies the requirements for the arrest of a flagrant offender

[2] Whether a prosecutor or senior judicial police officer may seize an article voluntarily submitted by the holder at the scene of arrest in the act of crime or at the place of crime without a warrant pursuant to Article 218 of the Criminal Procedure Act (affirmative), and in such case, whether a prosecutor or senior judicial police officer should obtain an

[1] Any person who is committing or immediately after committing a crime may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act). In order to arrest a flagrant offender, the necessity of arrest, i.e., the necessity of escape or destruction of evidence, in addition to the punishment of the act, the current and hourly contact of the crime, and the apparentness of the crime and the crime, should be determined based on the circumstances at the time of arrest. The requirement of arrest of a flagrant offender is determined based on the circumstances at the time of arrest, and there is considerable discretion in the judgment of the investigative body. Therefore, in light of the situation at the time of arrest, unless the judgment of the investigative body on the requirement is deemed unreasonable in light of the empirical rule, it is not readily

[2] Where a public prosecutor or a judicial police officer arrests a suspect in the act of committing an offense pursuant to Article 212 of the Criminal Procedure Act, he/she may, if necessary, seize, search, and inspect the suspect without a warrant at the scene of arrest, but where it is necessary to continue the seizure of the seized object, he/she shall request a seizure warrant without delay within 48 hours from the time of arrest (Articles 216(1)2 and 217(2)). In cases where it is impossible for a prosecutor or a judicial police officer to obtain a warrant by a judge because of urgency at the scene of the offense or immediately after the offense, seizure, search, or verification may be conducted without a warrant, but in such cases, a warrant shall be obtained after the fact without delay (Article 216(3)). However, according to Article 218 of the Criminal Procedure Act, a public prosecutor or a judicial police officer may seize the goods left behind by a suspect, etc., or the goods voluntarily submitted by the owner, possessor, or custodian at the scene of arrest or crime without a warrant.

[1] Articles 211 and 212 of the Criminal Procedure Act / [2] Articles 212, 216(1)2 and (3), 217(2), and 218 of the Criminal Procedure Act

[1] Supreme Court Decision 98Do3029 decided Jan. 26, 1999 (Gong1999Sang, 405) Supreme Court Decision 201Do3682 decided May 26, 201 (Gong2011Ha, 1367)

Defendant

Prosecutor and Defendant

Attorney Kim Sung-hwan

Seoul High Court Decision 2015No1515 decided August 28, 2015

Of the lower judgment, the part of the lower judgment pertaining to the violation of the Act on the Control of Narcotics, Etc. as of March 30, 201, April 25, 2011, the firstman of June 1, 201, and the violation of the Immigration Control Act as of June 1, 2014, and the violation of the same Act, shall be reversed, and that part of the case shall be remanded to the Seoul High Court. The Defendant’s appeal as to the violation of the Act on the Control of Narcotics, Etc. as of August 3, 2009 is dismissed.

The grounds of appeal are examined.

1. As to the prosecutor's grounds of appeal

A. Any person who is committing a crime or immediately after the crime is committed may arrest a flagrant offender without a warrant (Article 212 of the Criminal Procedure Act). In order to arrest a flagrant offender, the necessity of arrest in addition to the punishment of the act, the current and hourly contact of the crime, and the apparentness of the crime and the necessity of the crime, i.e., the necessity of escape or destruction of evidence (see Supreme Court Decision 98Do3029, Jan. 26, 199, etc.). Such requirements for the arrest of a flagrant offender shall be determined based on the situation at the time of arrest, and the subject of the investigation may have a considerable discretion. Accordingly, in light of the circumstances at the time of arrest, unless the judgment of the investigative body on the requirements is deemed unreasonable in light of the empirical rule, the arrest of a flagrant offender is not deemed unlawful (see Supreme Court Decision 2012Do8184, Nov. 29, 2012, etc.).

Where a public prosecutor or judicial police officer arrests a suspect in the act of committing an offense pursuant to Article 212 of the Criminal Procedure Act, he/she may, if necessary, seize, search or inspect the suspect without a warrant at the scene of arrest, but where it is necessary to continue seize such seized articles, he/she shall request a seizure warrant without delay within 48 hours from the time of arrest (Articles 216(1)2 and 217(2)). In cases where it is impossible for a judge to obtain a warrant due to urgency in the crime or immediately after the crime, a public prosecutor or judicial police officer may seize, search or inspect the suspect without a warrant; however, in such cases, a subsequent warrant shall be obtained without delay (Article 216(3)): Provided, That under Article 218 of the Criminal Procedure Act, a public prosecutor or judicial police officer may seize the articles left behind by the suspect, etc., or articles voluntarily submitted by the owner, possessor or keeper without a warrant. In such cases, the articles to be voluntarily submitted at the scene of arrest or at the scene of an offense may be seized without a warrant without a warrant.

B. Of the facts charged in the instant case, the summary of the violation of the Narcotics Control Act (fence) on June 1, 2014 among the facts charged in the instant case is as follows: “The Defendant: (a) on May 29, 2014, on the part of Nonindicted Party 1’s proposal, transported approximately 6.1km, which was divided into seven plastic paper from Nonindicted Party 1’s proposal, and stored in seven plastic paper from the Chinese ○○○, China, on the part of his body, and boarded on the bus with approximately 6.1km; and (b) on June 16:15 of the same year, entered into △△△△△△△△△ on June 15, 2014 in collusion with Nonindicted Party 1.”

The court below found that the defendant who searched and concealed inside the bar line reported by the prosecution investigator was in violation of the Act on the Control of Narcotics, etc. from Handphones, and searched the scene of the crime and seized the phone phone at the time of arrest, but the phone phone, which is evidence of the crime of phiphones, was not yet discovered at the time of arrest, and it is insufficient to recognize the apparentness of the crime among the requirements for the arrest in the act of crime. Even if the arrest of the flagrant offender is lawful, the investigative agency did not seize the phiphones and issued the ex post search and seizure warrant, and the defendant did not have been informed of the location of phiphones. Thus, even if the investigative agency received voluntary submission of the phiphones from the defendant who was exposed to the arrest of the flagrant offender, the court below found the defendant not guilty of the evidence of this case on the ground that the evidence of this case was not admissible, such as evidence collected without legitimate evidence or evidence submitted by the prosecutor.

C. However, this part of the judgment of the court below is not acceptable for the following reasons.

(1) According to the reasoning of the lower judgment and the evidence duly admitted by the first instance court, the following facts are revealed.

(A) On May 29, 2014, prosecutorial investigators received information from the Defendant (name 1 omitted) that the Defendant was protruding a bred boat (name 2 omitted) and pushed a philopon, and searched the bronon at around 16:15, which arrived at △△△△, around 16:15.

(B) Non-Indicted 2 of the prosecution investigator found the Defendant who was hidden on the vessel vessel and warehouse line in the search and found out the Defendant, and then laid down the philopon, but did not hear the answer. The other prosecutorial investigator who searched another place in the Madern line was arrested the Defendant as a flagrant offender, such as philopon import and smuggling entry, etc. around 16:30.

(C) Nonindicted 2, who immediately discovered the Defendant, presented approximately 6.1kg of the philopon found to the Defendant, and explained that “If a philopon is voluntarily produced, it may be seized without a warrant, and if seized, it shall not be returned without a warrant, and if it is not voluntarily produced, it shall be seized after obtaining a warrant.” On the same day, Nonindicted 2, upon obtaining the Defendant’s consent from the Defendant, seized the philopon with the word “the degree of the philopon is low,” and obtained a written confirmation of voluntary submission from the Defendant and signed and sealed by the Defendant. A prosecutor is keeping the philopon without obtaining a warrant of ex post facto seizure on the philopon.

(D) On April 29, 2010, the Defendant was sentenced to seven months of imprisonment for a violation of the Narcotics Control Act due to the purchase and sale, etc. of phiphones, and was punished on May 17 of the same year by a total of six times of the same criminal records.

(2) Examining these facts in light of the legal principles as seen earlier, it is difficult to view that the judgment of the prosecutorial investigator is considerably unreasonable in light of the empirical rule, when the defendant committed or committed the crime of smuggling importing phiphones while getting on board the ship, and immediately after having committed or committed the crime of smuggling importing phiphones, and immediately arrested the defendant at the location near the place where the defendant was found inside the ship where the prosecutorial investigator found the defendant inside the ship, which was the immediately arrested the defendant. In the situation at the time of arrest, it is lawful to arrest the defendant in the act of flagranting the phiphones while entering the ship.

In addition, in light of the fact that the prosecution investigator notified the defendant of the meaning, effect, etc. of voluntary submission before the seizure of phiphones, the defendant seems to have sufficiently known of the fact that the defendant was subject to criminal punishment several times due to the same crime, such as the sale and purchase of phiphones, and that the defendant cannot be returned in case of voluntary submission of phiphones which are the seized objects, there is no evidence to deem that the defendant denied the crime related to phiphones at the time when the defendant is arrested, and there is no circumstance to deem that the prosecution investigator deceivings or threatened the defendant in order to voluntarily submit phiphones, the defendant is deemed to have voluntarily submitted phiphones as the holder of phiphones. Therefore, the seizure of phiphones is legitimate

(3) Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the prosecution investigator’s arrest of the Defendant as an offender in the act of committing a crime involving philophones is unlawful, and that the seized philophones and the secondary evidence of this case based on the philophones are inadmissible as evidence or secondary evidence of illegally collected evidence. In so determining, the lower court erred by misapprehending the legal doctrine on the lawful requirements for the arrest of flagrant offenders, the seizure of voluntarily produced articles stipulated in Article 218 of the Criminal Procedure Act, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal pointing this out has merit.

D. Therefore, of the lower judgment, the part concerning the crime of violation of the Narcotics Control Act (fence) on June 1, 2014 among the judgment below should be reversed. However, the lower court’s conviction on March 30, 201, April 25, 2011, and the offense of violation of the Act on the Control of Narcotics, Etc. (fence) and the offense of violation of the Immigration Control Act and the above offense are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, should be reversed together.

2. As to the Defendant’s ground of appeal

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is imposed, an appeal on the grounds of unfair sentencing is permitted. As such, in this case where a more minor sentence is imposed on the crime of violation of the Narcotics Control Act on August 3, 2009 among the facts charged in this case, the argument that the punishment is too unreasonable or it is erroneous in incomplete deliberation on the grounds of sentencing is not a legitimate ground for appeal. Accordingly, the defendant's ground for appeal on this part cannot be accepted.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant and the prosecutor, the part concerning the violation of the Act on the Control of Narcotics, Etc. as of March 30, 201, April 25, 2011, June 1, 2011, and the violation of the Immigration Control Act, and the violation of the Act on the Control of Narcotics, etc. as of June 1, 2014, shall be reversed, and this part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. The Defendant’s appeal concerning the violation of the Act on the Control of Narcotics, etc. as of August 3, 2009 among the judgment below is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)