[1] Whether the evidence collected without following the procedure stipulated in the Criminal Procedure Act, etc. can be used as evidence for conviction (negative in principle)

[2] In a case where an investigative agency, when executing a search and seizure warrant at Gap corporation, sent a copy of the warrant by facsimile to Gap corporation, presented the original copy of the warrant, or prepared a seizure protocol and a list of seized articles and submitted them as evidence without delivering them to the party subject to search and seizure, the case affirming the judgment below that the e-mail confiscated by the above method is inadmissible

[1] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 114(1), 118, 129, 215, and 219 of the Criminal Procedure Act; Article 58 of the Regulation on Criminal Procedure / [2] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 114(1), 118, 129, 215, and 219 of the Criminal Procedure Act; Article 58 of the Regulation on Criminal Procedure

[1] Supreme Court en banc Decision 2007Do3061 Decided November 15, 2007 (Gong2007Ha, 1974)

Defendant

Defendant and Prosecutor

Law Firm local Law, Attorneys Park Jae-hwan et al.

Seoul High Court Decision 2014No2389 decided June 25, 2015

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court and the first instance court, it is justifiable for the lower court to have convicted all of the facts charged (excluding the part not guilty and not guilty of the reasoning) on the grounds as indicated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the hearsay rule

2. As to the Prosecutor’s ground of appeal

A. As to the violation of the National Security Act (Spy)

The lower court upheld the first instance judgment that acquitted the Defendant of this part of the facts charged on the grounds that there was no proof of crime on the grounds indicated in its reasoning. In light of the records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the hearsay rule and the legal doctrine on Article 313(1) of the

B. As to the non-guilty part of the violation of the National Security Act (praise, rubber, etc.)

(1) As a matter of principle, an investigative agency’s search and seizure should be based on a search and seizure warrant issued by a judge. The warrant should include 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, and Article 58 of the Rules on Criminal Procedure). A warrant must be presented to the person subject to the disposition (Articles 219 and 118 of the Criminal Procedure Act). In the event of seizure, a list of seized articles must be prepared and delivered to the owner, possessor, etc. (Articles 219 and 129 of the Criminal Procedure Act). The procedural provisions of the Criminal Procedure Act and the Rules on Criminal Procedure aim at realizing due process and warrant requirement declared in the Constitution, and its normative power must be maintained. Accordingly, evidence collected without complying with the procedure prescribed in the Criminal Procedure Act, etc., in principle, cannot be admitted as evidence for conviction (see, e.g., Supreme Court en banc Decision 201607Do17.

(2) On January 11, 2010, the lower court affirmed the judgment of the first instance court that acquitted the Defendant of this part of the charges on the grounds that: (a) the investigative agency executed a search and seizure warrant at Nonindicted Co. 1 Company, sent e-mail (Evidence No. 314-1, 3, and 5) by the Defendant to Nonindicted Co. 2; and (b) the investigative agency, at the time of executing the above search and seizure warrant, sent the copy of the warrant by facsimile to Nonindicted Co. 1 Company; (c) although there was a fact that the investigative agency sent the copy of the warrant by facsimile at the time of executing the above search and seizure warrant, it did not present the original warrant; and (d) each of the above e-mail confiscated in the above manner cannot be deemed as evidence of guilt in violation of the procedure under Articles 219, 118, and 129 of the Constitution and the Criminal Procedure Act, and such procedural violation constitutes an exceptional case where the substantial content of due process guaranteed by the Constitution and the Criminal Procedure Act could not be admissible.

Examining the reasoning of the lower judgment in light of the record, the lower court’s determination is justifiable as it is based on the legal doctrine as seen earlier, and there were no errors by misapprehending the legal doctrine on the procedure of seizure or

C. Meanwhile, the prosecutor appealed against the guilty portion of the judgment of the court below, but there is no ground of objection in the petition of appeal or appellate brief.

3. Conclusion

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

Justices Ko Young-han (Presiding Justice)