[1] Whether the rule of exclusion of illegally obtained evidence applies to the evidence collected by illegally voluntary conduct of a witness (affirmative)

[2] The admissibility of the non-statement evidence and the statement evidence collected by the illegal investigation, and whether the statement evidence collected by the illegal voluntary act against the witness constitutes an exceptional case where it can be admitted as evidence on the illegally collected evidence (negative)

[1] The Criminal Procedure Act allows compulsory measures on the basis of the principle of voluntary investigation and the principle of compulsory investigation legalism only by a warrant issued by a judge only when there are special provisions in the Criminal Procedure Act. In the case of a suspect, a compulsory investigation that practically limits physical freedom, such as arrest and detention, can be partially conducted by the Criminal Procedure Act. However, in the case of a witness, there is no means such as compulsory arrest by which an investigation agency can secure the person's personal liberty at the investigation stage. In the case of a witness, the investigation of a witness who is a cooperation agent of the investigation requires more strict requirements than voluntary arrest of a suspect who is suspected of a crime, and the necessity to apply the rule of exclusion of illegally collected evidence is greater. Accordingly, the evidence collected by the witness is admissible by Article 308-2 of the Criminal Procedure Act as an illegal investigation, as in the case of a force on the suspect.

[2] In the case of non-statement evidence such as seized articles by illegal search and seizure procedures, it does not constitute a case where a violation of the investigation agency’s procedural violation infringes on the substantial contents of due process, and rather, where the Constitution and the Criminal Procedure Act deem that the exclusion of admissibility of evidence would result in a result contrary to the purport of promoting a balance between the principle of due process and the substantial truth-finding and promoting the justice of criminal justice through the establishment of procedural provisions regarding criminal procedures, the court may use such evidence as evidence for conviction. However, in the case of statement evidence collected by illegal investigation, its admissibility cannot be recognized as evidence because the exceptional permissible criteria of illegally collected evidence cannot be applied. Even if the above exceptional permissible criteria are applicable, it does not constitute a case where the above exceptional permissible criteria can be applied even if it is based on the balance between the substantial truth-finding and the interests of the witness because the degree of illegality is not insignificant.

[1] Articles 199(1), 307, and 308-2 of the Criminal Procedure Act / [2] Articles 199(1), 215, 307, and 308-2 of the Criminal Procedure Act

[2] Supreme Court en banc Decision 2007Do3061 Decided October 28, 2005 (Gong2007Ha, 1974), Supreme Court Decision 2009Do526 Decided April 23, 2009 (Gong2009Sang, 804), Supreme Court Decision 2008Do10914 Decided May 14, 2009 (Gong2009Sang, 925)

Defendant 1 and one other

Prosecutor

Completion Officer

Law Firm Cheongju, Attorney Kim Han-hwan

Cheongju District Court Decision 2008Gohap712 decided January 15, 2009

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

The voluntary behavior against Nonindicted Party 1 and 2 was lawful, and even if illegal, even if illegal, Nonindicted Party 1 and 2 are identified in the instant case, so the rule of exclusion of illegally collected evidence does not apply. In addition, even if the admissibility of Nonindicted Party 2’s written self-statement is denied, the conviction against the Defendants may be recognized through circumstantial evidence or indirect evidence. The lower court erred by misapprehending the legal doctrine or by misapprehending the legal doctrine that affected the conclusion of the

2. Determination:

A. Whether the act of voluntary behavior is illegal

As indicated in its reasoning, the lower court is justifiable to have determined that the judicial police officer’s accompanying Nonindicted 1 and 2 to the investigative agency at the time of the instant case constitutes de facto forced conduct committed under the psychological pressure that could not refuse the demand of accompanying a judicial police officer without meeting the lawful requirements of the voluntary conduct.

The prosecutor's above assertion on this is without merit.

B. Whether the exclusionary rule of illegally collected evidence applies to the illegal voluntary behavior against the witness

A prosecutor asserts that even if there was an error in the process of accompanying Nonindicted Party 1 and 2 to investigators, as to the instant case, the rule of exclusion of illegally obtained evidence is merely a witness.

The Criminal Procedure Act allows compulsory measures on the basis of the voluntary investigation principle and the compulsory investigation legal principle only by a warrant issued by a judge only when there is a special provision in the Criminal Procedure Act. In the case of a suspect, the compulsory investigation that practically limits the physical freedom is possible by the Criminal Procedure Act, such as arrest and detention at the investigation stage. However, in the case of a witness, there is no means such as compulsory arrest that the investigation agency can secure the person in question at the investigation stage, but in the case of a witness, there is no means such as compulsory arrest that the investigation agency can secure the person in question at the investigation stage.

As a result, even if the police did not admit Nonindicted 1 and 2 as a criminal suspect for sexual traffic, and the Defendants were the witness or witness in this case based on their statements, it is found that the police investigated Nonindicted 1 and 2 as a criminal suspect or a person under internal investigation at the time of securing the testimony of Nonindicted 1 and 2 whose admissibility is at issue in the instant case, and the above statement is virtually denied admissibility as evidence collected following the illegal arrest of the suspect or the person under internal investigation. Even if Nonindicted 1 and 2 were the witness status, the police's process of securing their personal illness was illegal coercion, and thus, the testimony evidence collected thereafter should also be denied in accordance with Article 308-2 of the Criminal Procedure Act.

The prosecutor's above assertion on this is without merit.

C. Whether it constitutes an exceptional case where the admissibility of illegally collected evidence is recognizable by comparative sentence

In the case of non-statement evidence, such as seized articles by illegal search and seizure procedure, it does not constitute a case where a violation of due process by an investigation agency infringes on the substantial contents of due process, and rather, the admissibility of evidence does not constitute an exceptional case where the Constitution and the Criminal Procedure Act are judged to have resulted in a result contrary to the purport that the Constitution and the Criminal Procedure Act established a procedural provision concerning criminal procedure to harmonize the principle of due process and the substantial truth-finding and thereby to realize the justice of criminal justice, the court shall be deemed to be entitled to use the evidence as evidence for conviction (Supreme Court en banc Decision 2007Do3061 Decided November 15, 2007). However, in the case of testimony evidence collected by illegal investigation, the above exceptional permissible standard of evidence cannot be applied, and even if the above exceptional permissible standard can not be applied, it does not constitute a case where the above exceptional permissible standard of evidence can not be applied even if the degree of illegality is insignificant, and thus the forced conduct of this case does not constitute a case where the above exceptional permissible standard can be applied

The prosecutor's above assertion on this is without merit.

D. Whether the circumstantial evidence of this case alone can be found guilty

There is no direct evidence to acknowledge that the Defendants received money from Nonindicted 2 in return for the so-called sket business, and only the circumstance that the Defendants’ crime is doubtful is acknowledged as evidence submitted by the prosecutor. Therefore, it is difficult to view that the facts charged are proven to the extent that it is beyond a reasonable doubt that the Defendants, who received money from Nonindicted 2 and let Nonindicted 1, an employee, receive money from Nonindicted 2, and let Nonindicted 2 go out of the Republic of Korea.

The court below's decision to the same purport is just, and the prosecutor's assertion is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jin-jin (Presiding Judge)