[1] Whether “Evidence” collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act and “second-party evidence” obtained based on such evidence are admissible (negative in principle)

[2] Whether a judicial police officer’s admissibility of “written consent to voluntary submission” on the seized article prepared by the Defendant immediately after the seizure of the article without a warrant in violation of Article 215(2) of the Criminal Procedure Act (negative in principle)

[3] In a case where the police arrested the defendant at a place 20 meters away from the defendant's house and searched the defendant's house to search the defendant's house and seize the knife and agreement, and the defendant's search and seizure warrant was not issued within a lawful time, the case affirming the judgment below to the same effect that the above knife and agreement were unlawfully seized and it is not admissible, and that the above knife and agreement was not issued, and the second evidence, which is the secondary evidence, is also without admissibility, such as the "written consent

[1] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 215, 307, and 308-2 of the Criminal Procedure Act / [2] Articles 215(2), 307, and 308-2 of the Criminal Procedure Act / [3] Articles 2(1)3 and 3(1) of the Punishment of Violences, etc. Act; Articles 215(2), 216, 217, 307, and 308-2 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2007Do3061 Decided November 15, 2007 (Gong2007Ha, 1974) Supreme Court Decision 2009Do11401 Decided December 24, 2009 (Gong2010Sang, 298) Supreme Court Decision 2009Do1092 Decided January 28, 2010 (Gong2010Sang, 474)

Defendant

Prosecutor

Attorney Gangdong-gu

Seoul Southern District Court Decision 2009No1715 Decided November 27, 2009

The appeal is dismissed.

We examine the grounds of appeal.

1. In order to guarantee fundamental human rights, the normative power of the Criminal Procedure Act, which provides specific criteria for the 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 rights of individuals. As such, evidence collected without following the procedures prescribed by the Constitution and the Criminal Procedure Act, as well as secondary evidence obtained based on the same does not follow the lawful procedures established to guarantee fundamental human rights, and thus, cannot be admitted as evidence for conviction in principle. However, it does not constitute a case where an investigation agency’s violation of due process does not infringe on the substantial contents of due process, and exclusion of admissibility of evidence does not result in a violation of the purpose of realizing criminal justice through harmonization between the principle of due process of law and the substantial truth investigation (see, e.g., Supreme Court en banc Decision 2007Do3061, Nov. 15, 2007; Supreme Court Decision 2008Do29, Oct. 29, 20108).

Article 215(2) of the Criminal Procedure Act provides that "a judicial police officer may seize, search, or inspect articles without a warrant issued by a judge of the district court upon request of a public prosecutor who is requested by the judicial police officer, if necessary for a criminal investigation." Thus, in cases where articles are seized without a warrant in violation of the above provision, the judicial police officer may not use the seized articles as evidence for conviction, as well as secondary evidence obtained based on the above provision. In light of the importance of the warrant requirement declared by the Constitution and the Criminal Procedure Act, the foregoing legal principle is the same as in the absence of special circumstances to voluntarily submit consent to the seized articles prepared by the defendant immediately after illegal seizure.

According to the records, the police arrested the defendant at a place less than 20 meters away from the defendant's house, and searched the house of the defendant to search the house and seize the knife and agreement, and did not have the right to request and issue a search and seizure warrant within a lawful time. In light of the above legal principles, the above knife and agreement are not voluntary articles, but illegally seized without the warrant, and it is not admissible as evidence, and accordingly, the consent to voluntary submission, seizure and list of the second evidence, and the photograph of the seized articles are also inadmissible.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the admissibility of seized articles or in violation of the rules of evidence.

2. The selection of evidence and the fact-finding belong to the full authority of the fact-finding court unless it is against logical and empirical rules. Examining the evidence of the first instance court admitted by the court below in light of the records, it is hard to believe that the court below maintained the first instance court's judgment which acquitted this part of the charges on the grounds that the remaining evidences submitted by the prosecutor are insufficient to recognize this part of the charges, and there is no other evidence to acknowledge this, and there is no violation of the rules of evidence as argued in the Grounds for Appeal.

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 Young-ran (Presiding Justice)