[1] Requirements for recognizing the legality of a “voluntary act of operation”

[2] Whether an investigative agency may use illegally collected evidence against “a person who is not the defendant” as evidence of conviction (negative in principle)

[3] The case holding that in case where entertainment drinking club business owners and employees were indicted for violating the former Food Sanitation Act by receiving money and valuables from the Defendants while engaging in sexual traffic in the form of so-called “tamp business,” the case holding that each written statement, which was prepared by the police officer Gap, Eul, and Eul, constitutes evidence obtained by illegal investigation, and thus, it cannot be admitted as evidence for conviction against the Defendants on the ground that it is not admissible as evidence

[1] Article 199(1) of the Criminal Procedure Act explicitly provides for the principle of voluntary investigation. The act of an investigator accompanying a suspect to an investigative agency, etc. in the form of obtaining consent in the course of an investigation does not have any means to suppress the suspect's physical freedom, and even though it is substantially similar to the arrest, it is not institutionally arbitravable as well as practically arbitravable. Moreover, since there is a high possibility that the investigator may result in a violation of the principle of the Criminal Procedure Act, such as the provision of various rights guarantee devices granted to the suspect arrested and detained under the Constitution and the Criminal Procedure Act on the ground that it is yet prior to the regular stage of arrest and detention, it is reasonable to view the legality of accompanying only when it is proved by objective circumstances that the investigator could refuse accompanying the suspect prior to the accompanying, or the suspect who was accompanied could freely leave the investigative agency at any time, and it is evident that the accompanying was carried out by the investigative agency, etc. by his voluntary will.

[2] Article 308-2 of the Criminal Procedure Act provides that "Any evidence collected in violation of the due process shall not be admitted as evidence." Since the investigation agency's evidence collected in violation of the procedure stipulated in the Constitution and the Criminal Procedure Act cannot be admitted as evidence for conviction, it cannot be admitted as evidence for conviction. Thus, the evidence collected in violation of due process against the defendant by the investigation agency shall not be admitted as evidence for conviction against the defendant in principle.

[3] The case holding that in case where the defendants who are entertainment drinking house owners and employees were charged with violating the former Food Sanitation Act (amended by Act No. 8779 of Dec. 21, 2007) on the ground that they received money and valuables in the form of so-called "teket business" even though they did not receive money and valuables in return for the required time outside their business place, the case held that in case where Gap and Eul, et al. received a self-written statement from Gap and Eul in order to punish the acts of sexual traffic between Eul and Eul and the defendants' acts of entertainment establishments under the actual forced arrest of Gap and Eul, and the defendants' acts of entertainment establishments, and written the written statement about Eul, the above self-written statement and the written statement violate the warrant principle of arrest and detention under the Constitution and the Criminal Procedure Act, and thus, they cannot be admitted as evidence for conviction of the defendants on the ground that they constitute evidence collected by investigation agencies against the defendants, and thus, the admissibility of evidence under Article 308-2 of the Criminal Procedure Act is denied.

[1] Articles 19(1) and 200 of the Criminal Procedure Act, Article 3(2) of the Act on the Performance of Duties by Police Officers / [2] Articles 21 and 308-2 of the Criminal Procedure Act / [3] Articles 12(1) and (3) of the Constitution of the Republic of Korea, Article 31(3) (see current Article 44(3)), Article 77-2 (see current Article 98 subparag. 1), Articles 199(1), 200-2, 201, 221, 308-2, and 325 of the former Food Sanitation Act

[1] Supreme Court Decision 2005Do6810 Decided July 6, 2006 (Gong2006Ha, 1572) / [2] Supreme Court Decision 92Do682 Decided June 23, 1992 (Gong1992, 2316), Supreme Court en banc Decision 2007Do3061 Decided November 15, 2007 (Gong2007Ha, 1974), Supreme Court Decision 2008Do8213 Decided August 20, 209 (Gong2009Ha, 1579), Supreme Court Decision 2009Do2109 Decided April 28, 201 (Gong2011Sang, 1080)

Defendant 1 and one other

Prosecutor

Cheongju District Court Decision 2009No132 Decided June 25, 2009

All appeals are dismissed.

We examine the grounds of appeal.

1. Article 199(1) of the Criminal Procedure Act provides that "Any investigation necessary to achieve the purpose of an investigation may be conducted: Provided, That compulsory measures shall be limited to cases where there are special provisions in this Act, and shall be limited to the minimum necessary." The principle of voluntary investigation is clearly stated. In the course of an investigation, an investigator's accompanying a suspect to an investigative agency in the form of obtaining consent from the party involved is restricted in the freedom of body of the other party in reality and is placed in a situation similar to the arrest actually, and there is no other method of suppressing accompanying a suspect without a warrant, as well as institutional and practical decentralization is not guaranteed, and there is a high possibility that it may result in a violation of the principles of the Criminal Procedure Act, such as the provision of various guarantee measures to guarantee rights granted to a suspect arrested and detained by the Constitution and the Criminal Procedure Act to the other party on the ground that it is still prior to the regular arrest and detention stage. Therefore, it is evident that the investigator's accompanying cannot be refused at any time, or the accompanying suspect can be freely withdrawn from the investigative agency, and there is no objective 2060.

In addition, Article 308-2 of the Criminal Procedure Act provides that "Any evidence collected in violation of the due process shall not be admitted as evidence." Since the investigation agency's evidence collected in violation of the procedure stipulated in the Constitution and the Criminal Procedure Act cannot be admitted as evidence for conviction (see, e.g., Supreme Court en banc Decision 2007Do3061, Nov. 15, 2007), it cannot be admitted as evidence for conviction against a person other than the defendant in principle (see Supreme Court Decisions 92Do682, Jun. 23, 1992; 2008Do8213, Aug. 20, 209).

According to the facts and records duly admitted by the court below, even if the two police officers were informed of the fact that the above four persons were forced to engage in sexual traffic at the time of their initial arrest and seizure, and the police officers were not allowed to accompany Nonindicted 1 to the above 20th police officers, and thus, they could not refuse to accompany Nonindicted 1 to the above 20th police officers during their search and seizure on the same day. However, even if the two police officers were not allowed to accompany Nonindicted 1 to the above 20th police officers on the ground that they were forced to arrest and seize Nonindicted 1 and the above 2nd 2nd 2nd 1st 2nd 2nd 24th 2nd 1st 2nd 2nd 1st 2nd 1st 2nd 2nd 2nd 2nd 2nd 3nd 2nd 2nd 2nd 3nd 2nd 2nd 3rd 2nd 2nd 2nd 3rd 2nd 2nd 3rd 2nd 3rd 2nd 2nd 3rd 2nd 2nd 2nd 2nd 3.

The decision of the court below is just in the conclusion that although there is a little difference in the above legal principles in judging that the accompanying of Nonindicted 1 and 2 to the investigative office is unlawful, each of the above written statements and each of the above written statements cannot be used as evidence of the facts charged against the Defendants since the above written statements and each of the above written statements cannot be used as evidence, and it is not erroneous in the misapprehension of legal principles as to admissibility as otherwise alleged in the ground of appeal.

2. The prosecutor’s remaining grounds of appeal are merely the purport of disputing the fact-finding that belongs to the full power of the fact-finding court, and thus cannot be justified.

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

Justices Shin Young-chul (Presiding Justice)