2019Do1431 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Rape of a minor, rape of a minor, or inducement of sexual intercourse ( partial recognition of a minor)

the name of the crime, attempted sexual intercourse, and the punishment, etc. of a sexual crime

Article 20 (obscenity of Communications media)

2019 Do 130 (Joint Attachment Orders)

Persons whose attachment order is requested;

Defendant

Defendant and the respondent for attachment order

Law Firm (LLC) LLC, Attorneys O Dong-dong et al., Counsel for the defendant-appellant

Seoul High Court Decision 2019No320, 2019No22 (Joint) Decided September 27, 2019

February 13, 2020

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Defendant case

A. The lower court acknowledged the criminal facts of the convicted portion on the grounds stated in its reasoning. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the commencement time of the commission of the crime of assault and the crime of inducing sexual intercourse in the crime of rape. In addition, even in light of the

B. Next, we examine the allegation in the grounds of appeal regarding exclusion of illegally collected evidence. Article 215(1) of the Criminal Procedure Act provides that “A prosecutor may seize, search, or inspect evidence with a warrant issued by a judge of the competent district court only when there is a circumstance to suspect that a criminal suspect committed a crime when necessary for a criminal investigation.” Therefore, if a seizure is conducted irrelevant to the facts of the crime which were the grounds for issuing the warrant, this cannot be used as evidence of conviction in principle. However, in the case of a crime which is the object of search and seizure or a crime related thereto, it may be used as evidence of guilt. Inasmuch as the crime related to the facts of the crime is objectively related to the facts of the crime stated in the search and seizure warrant, and is not directly related to the person subject to the search and seizure or to the suspect, and is not directly related to the facts of the crime, such as the case where it is acknowledged that there is an objective relevance between the person subject to the search and seizure warrant and the warrant and the case where it is deemed that there is an objective and indirect relation with the same criminal facts as the criminal investigation.

A) The mobile phone of the Defendant and the person subject to an application for an attachment order (hereinafter referred to as “Defendant”) were lawfully seized at the site of emergency arrest by the Defendant at the site of emergency arrest, and such seizure status may continue to be maintained based on the court’s ex post facto search, seizure, and verification warrant (hereinafter “instant search and seizure warrant”) issued pursuant to Article 217(2) of the Criminal Procedure Act. In addition, the investigative agency secured the Defendant’s right to participate at the time of securing the instant additional data from the aforementioned mobile phone, but the Defendant expressed his/her intent not to participate in the procedure.

B) In the instant search and seizure warrant, only the charge of inducing sexual intercourse with the victim Nonindicted 1 and the use of communications media was specified in the criminal charge column. However, the court included the need for additional investigation into the crime in addition to the reasonableness of the suspicion of the warrant on the grounds that continuous search, seizure, and verification are necessary in the above warrant.

C) The facts of suspicion stated in the instant search and seizure warrant are about the intermediate process to engage in sexual intercourse with Nonindicted Party 1, who is a minor, or the act assessed as such means. Furthermore, the Defendant did not completely exclude the possibility of being punished as habitual offenders pursuant to Article 305-2 of the Criminal Act, etc. As such, the crimes against Nonindicted Party 2, Nonindicted 3 (tentative name), and Nonindicted 4 revealed as additional data in the instant search and seizure warrant may be deemed to be cases where the facts of suspicion stated in the instant search and seizure warrant are directly related to the same crime. In fact, the aforementioned additional crimes committed between December 2017 and April 7, 2018 are close to time, which is the date of the instant search and seizure warrant, to the point of time, from May 7, 2018, which is the object of the victims of sexual intercourse with the motive of the instant crime or the method of the instant sexual crime, which is a series of crimes subject to punishment, among the sexual crimes subject to the instant search and seizure warrant.

It was also used as indirect evidence in support of ‘the purpose of inducing or meeting his or another person's sexual desire. Furthermore, the instant additional evidence not only constitutes circumstantial evidence of the law, preparation process, plan, etc. that the Defendant committed the same crime as the above criminal facts in the warrant, but also could be used as evidence to determine the credibility of the Defendant’s statement concerning the criminal facts in the warrant itself.

3) Comprehensively taking account of the aforementioned legal principles and circumstances, it is reasonable to view that the Defendant’s crime against Nonindicted 2, Nonindicted 3 (tentative name), and Nonindicted 4, revealed by the instant additional data, exceeds the mere criminal facts of the instant search and seizure warrant, which are identical or similar to the criminal facts of the instant search and seizure warrant, and that the Defendant satisfied all objective and personal relations in a specific and individual relationship.

In the same purport, the lower court did not err by misapprehending the legal doctrine on illegally collected evidence, contrary to what is alleged in the grounds of appeal, in determining that the instant additional materials do not constitute illegally collected evidence, and thus, can be used as evidence for not only the facts constituting the crime of the instant search and seizure warrant but also the said additional crimes.

2. As to the case of the claim for attachment order

When a defendant files an appeal against a prosecuted case, the appeal shall be deemed to have been filed regarding the case for which a request for attachment order is filed: Provided, That no statement of grounds of objection shall be found in the petition of appeal or the 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 Kim Jae-hyung

Justices Jo Hee-de

Justices Min You-sook

Justices Lee In-bok and Lee Dong-won