[1] Whether the evidence collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act and the secondary evidence obtained based on such evidence is admissible (negative in principle), and whether the same legal principle applies to cases where the investigative agency obtained confessions from the defendant on the basis of unlawful seizure (affirmative)

[2] Whether the execution of a warrant of search and seizure of electronic information is legitimate in exceptional cases where the storage device itself can be taken out to the outside of the investigation agency office, etc., and whether the execution of a document is legitimate in the storage device taken out to the investigation agency office, etc. without distinguishing the relevance to the offense from the offense (negative in principle)

[1] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 215 and 308-2 of the Criminal Procedure Act / [2] Article 12(1) and (3) of the Constitution of the Republic of Korea; Articles 114 and 215 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 2009Do2109 Decided April 28, 201 (Gong201Sang, 1080) / [2] Supreme Court Order 2009Mo190 Decided May 26, 201 (Gong201Ha, 1342)

Defendant 1 and two others

Defendant 1, 2, and Prosecutor

Ulsan District Court Decision 2011No221 decided July 15, 2011

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the appeal by Defendant 1 and Defendant 2

The above Defendants did not submit an appellate brief within the statutory period, and the appellate brief does not state the reasons for the appeal.

2. As to the prosecutor's appeal

A. As to the acquittal part of Defendant 1 and Defendant 2

Examining the reasoning of the judgment below in light of the records, it is justifiable for the court below to maintain the judgment of the court of first instance which acquitted the above Defendants of the violation of the Licensed Customs Brokers Act on the grounds that there is no proof of crime among the facts charged in this case against the above Defendants. There is no violation of the law of logic and experience exceeding the bounds of the principle of free evaluation of evidence against the law of logic and experience, or

B. As to the acquittal of Defendant 3

In principle, evidence collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act, as well as secondary evidence obtained based on it, shall not be admitted as evidence for conviction inasmuch as it does not comply with legitimate procedures prepared to guarantee fundamental human rights. However, in a final determination of admissibility of seized articles illegally obtained, all circumstances related to a procedural violation committed by an investigative agency in the course of evidence collection, i.e., the purport of the procedural provision and its content and degree of violation, specific details and possibility of evasion, the nature and degree of infringement of the right or legal interests to be protected, the relationship between the defendant and the investigation agency, the degree of causation between the procedural violation and the collection of evidence, the perception and intent of the investigative agency, etc., are not limited to cases where the procedural violation of the investigative agency infringes on the substantive substance of due process, and instead, exclusion of admissibility of evidence does not constitute evidence of the criminal procedure, and where it is deemed that the investigation agency’s act violates the purpose of criminal justice by promoting harmony between the principle of due process of criminal procedure and substantive truth examination, the court may use evidence for conviction based on evidence collection and evidence as evidence (see Supreme Court en banc Decision 201010.

Meanwhile, as a matter of principle, the execution of a search and seizure warrant for digital information should be conducted by collecting only the parts related to the suspected criminal facts as the grounds for issuing the warrant as documents or by copying the relevant file into the storage device carried by the investigation agency. Even if the execution of the warrant is impossible or considerably difficult due to the circumstances at the execution site, the storage device itself is recorded in the warrant so that the relevant file can be seized and searched, either directly or in the form of an investigation agency, such as a hybrid or a scarf, and it can be exceptionally allowed only when such circumstances occur. Furthermore, the process of searching digital information related to the suspected criminal facts stated in the warrant after moving the storage device itself to the investigation agency, etc. is also included in the execution of a search and seizure warrant as a whole. Accordingly, the scope of copying the documents should also be limited to the parts related to the suspected criminal facts, as long as there are no special circumstances against the warrant principle of due process or the warrant principle of the Supreme Court.

Of the instant facts charged against Defendant 3, the “○○ Logistics-related documents” and “electronic data output”, which are evidence of the violation of the Customs Act related to the “○○ Logistics”, are not subject to seizure of the instant search and seizure warrant, or are irrelevant to the facts charged, and the confession made by the Defendant at an investigation agency, based on evidence not complying with the procedure, the lower court affirmed the first instance judgment that acquitted Defendant on the facts charged, on the ground that these evidence did not constitute a violation of the substantive content of due process, and thus, it cannot be deemed that the causal relationship between the procedural violation and the secondary evidence collection cannot be dilution or terminated, and thus, the causal relationship between the procedural violation and the secondary evidence collection could not

In light of the above legal principles and records, although the court below's reasoning is somewhat inappropriate, it is just to deny admissibility of evidence of the above evidence and not guilty of the above facts charged on the ground that there is no proof of crime. In so doing, it did not err by misapprehending the legal principles on admissibility of illegally collected evidence, which affected the conclusion of judgment.

C. As to the guilty part of the Defendants

Meanwhile, the prosecutor appealed from the judgment below as to the guilty portion of the Defendants, but the petition of appeal or the appellate brief does not indicate the grounds therefor.

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 Park Poe-young (Presiding Justice)