How Far Can Dispositions of Investigative Agencies Be Challenged by Quasi-Appeal? Specifying the Object of Challenge, the Claim for Return of Seized Items after a Waiver Undertaking, Refusal of Counsel's Participation, and Presentation of Warrants

Question

In large investigations, seizure, detention and interrogation overlap within a short period, and defects in that process may be challenged first by quasi-appeal, before they develop into disputes over the admissibility of evidence. A quasi-appeal is the procedure by which a person dissatisfied with a disposition of a prosecutor or a judicial police officer requests a court to revoke or alter that disposition.

The first question in this brief is how specifically a quasi-appellant must identify the object of the challenge. Where an investigative agency has carried out several seizures and it is difficult for the person from whom the items were seized to know which agency made which disposition, is the request to be rejected solely on the ground that it is insufficiently specific?

The second question is whether, if a suspect submitted an undertaking waiving ownership during the investigation, the investigative agency is relieved from returning the seized items. The third question is whether a disposition refusing counsel's participation in interrogation, or a seizure disposition in which the part of the warrant setting out the offence stated in the warrant was not shown, can be revoked by quasi-appeal, and whether the fact that counsel later inspected the warrant cures the defect.

This brief does not assess the prospects of a quasi-appeal in any particular case. It sets out the materials to be checked against the law in force at the time of the act and the points on which interpretations diverge, and leaves the assessment to the reader.

Material to check

The starting point is the provision on which the quasi-appeal is based. The current Article 417 of the Criminal Procedure Act provides that a person dissatisfied with a disposition of a prosecutor or a judicial police officer concerning detention, seizure or the return of seized items, or with a disposition concerning the participation of counsel, etc. under Article 243-2, may request the court having jurisdiction over the place where the duties were performed, or the court corresponding to the Prosecution Service office at each level, or its branch office, to which the prosecutor belongs, to revoke or alter that disposition. As this provision bears amendment notes for 2007 and 2026, the wording in force at the time of the disposition must be checked separately.

The form of the request is governed by Article 418 of the same Act. The request must be submitted in writing to the competent court. The first points to check are therefore which disposition the quasi-appeal petition states was made, on which date and by which investigative agency, and what revocation or alteration it seeks. The seizure record, the list of seized items, a copy of the warrant, and documents delivered by the investigative agency form the basis for that identification.

On the return of seized items, Article 133(1) and Article 218-2 of the same Act are to be read together. Article 133(1) provides that seized items whose continued seizure is deemed unnecessary must be returned by ruling even before the conclusion of the case against the defendant, and Article 218-2(1) provides that, for seized items and the like whose continued seizure is deemed unnecessary, including where the prosecutor has secured a copy, the prosecutor must return them or return them provisionally, even before the institution of a prosecution, upon request by the owner, possessor, custodian or person who produced them. Article 218-2 was newly inserted in 2011.

The handling of cases in which return is not possible is found in Article 486 of the same Act. Where the whereabouts of the person entitled to the return are unknown or return cannot be made for any other reason, the prosecutor must give public notice of that reason in the Official Gazette, and if no request for return is made within three months after the notice, the item vests in the National Treasury. The record must show whether vesting in the National Treasury went through this procedure or relied on some other basis, such as a waiver undertaking.

On counsel's participation, the current Article 243-2(1) of the same Act is relevant. This provision requires a judicial police officer, upon application by the suspect, the suspect's counsel or others, to allow counsel to meet the suspect or, absent justifiable grounds, to participate in the interrogation of the suspect, and paragraph (5) requires matters concerning participation in interrogation and its restriction to be recorded in the record of interrogation of the suspect. As this provision was newly inserted in 2007 and amended in 2026, the wording in force at the time of the interrogation and the provision applicable to the authority conducting it must be checked.

On presentation of the warrant, Articles 118 and 219 of the same Act are relevant. Article 118 provides that a search and seizure warrant must be presented to the person subject to the disposition and that, where that person is the defendant, a copy must be delivered, and Article 219 applies this mutatis mutandis to seizures and searches by judicial police officers. Article 118 bears a 2022 amendment note. The key materials are those showing which part of the warrant was presented at the scene of the seizure and whether the person from whom the items were seized requested a specific inspection.

Possible readings

On identification of the object of challenge, one reading applies the principle of written proceedings strictly: if the quasi-appellant fails to identify the disposition and the authority that made it, the court has nothing to examine and may therefore reject the request. Another reading gives priority to the fact that the quasi-appeal is an expedited remedy for the person from whom the items were seized, and holds that where there are circumstances making identification difficult, the court must give an opportunity to identify the disposition through elucidation.

On the nature of the quasi-appeal, readings diverge between one that presupposes an adversarial structure and requires the authority that made the disposition to be precisely named as the opposing party, and one that holds that, because the procedure reviews the illegality of the disposition itself, the examination should continue once the disposition is established, even if the identification of the authority that made it is somewhat inaccurate.

On the waiver undertaking, one reading holds that if the waiver of ownership is valid, there is no longer anyone entitled to the return, so the duty to return is also extinguished. The dissenting opinion in the 1996 decision takes this direction. The opposing reading holds that return does not determine substantive rights but is a procedure restoring the state prior to the seizure, so a waiver under private law does not affect the duty to return and the claim for return under procedural law.

On the refusal of counsel's participation, the issue in the period when there was no express provision was whether such refusal fell within a disposition concerning detention, which is a proper object of quasi-appeal. A broad reading includes it, on the ground that quasi-appeal is the only means of challenging dispositions made during detention; a narrow reading confines it, on the wording, to dispositions concerning detention itself. As the current Article 417 expressly mentions dispositions concerning the participation of counsel, etc., this divergence remains mainly in cases where the law in force at the time of the act is the former statute.

On the scope of restricting participation, one reading gives broad discretion to the judgment of the investigative agency, and another holds that participation may be restricted only where there are special circumstances in which a risk of obstructing the interrogation or disclosing investigative secrets is objectively evident. This also bears on how the justifiable grounds in the current provision are to be read.

On defects in presentation of the warrant, one reading holds that the defect is cured if the right of defence was ultimately secured, for instance by counsel inspecting the warrant afterwards; the opposing reading holds that the lawfulness of the presentation must be determined separately, by reference to the time of the seizure disposition.

What the decisions held

Supreme Court Decision 2022Mo1566 of 12 January 2023 held that the person from whom the items were seized must identify the disposition challenged, make clear the purport of the quasi-appeal, and submit it in writing, but also stated that "where there are circumstances making it difficult for the quasi-appellant to identify specifically the disposition concerning seizure, etc. that is the object of the challenge, the court must, through the exercise of its power of elucidation or otherwise, give the quasi-appellant an opportunity to identify the disposition concerning seizure, etc. being challenged." It further held that quasi-appeal proceedings are "a kind of appeal litigation and, unlike litigation procedure based on the adversarial principle, do not require the participation of two opposing parties," and stated that a quasi-appeal "should not readily be rejected" solely on the ground that the authority that made the disposition was not properly identified. The disposition revoked the order below except for the part concerning certain dispositions, and remanded the case. The majority opinion in Supreme Court Decision 94Mo51 of 16 August 1996 held that "the return of seized items does not confer on, or determine for, the person receiving the return ownership or any other substantive right in the returned item, but merely lifts the seizure and restores the state prior to the seizure," so that a change in private-law rights does not affect the status under the Criminal Procedure Act of the person entitled to the return; it held that "when it is no longer necessary to continue the seizure of seized items, the investigative agency must return those items, except where return is impossible and they are made to vest in the National Treasury," and that the agency cannot escape the duty to return by means of a waiver of the claim for return. There was a dissenting opinion, and the disposition reversed the order below and remanded the case.

Supreme Court Decision 2003Mo402 of 11 November 2003 held that "a disposition refusing the participation (attendance) of counsel at the interrogation of a detained suspect must also be regarded as a disposition concerning detention," and that it may therefore be challenged by quasi-appeal. While recognising, by analogical application, a right to demand counsel's participation although there was no express provision at the time, the Court stated that "it goes without saying that counsel's participation may be restricted where it is objectively evident that there are special circumstances giving considerable reason to suspect a risk of obstructing the interrogation, disclosing investigative secrets or the like, such that it is deemed necessary to restrict counsel's participation." The disposition dismissed the re-appeal. Supreme Court Decision 2019Mo3526 of 16 April 2020 held that where the person from whom the items were seized requested a specific inspection of the contents of the warrant but the part stating the offence was not shown, "it is difficult to recognise this as a lawful presentation of a search and seizure warrant" under Articles 219 and 118, and that "the order below, which held that the seizure disposition was not unlawful on the ground that counsel inspected the warrant when participating in the examination, erred in violating the relevant provisions of the Constitution and the Criminal Procedure Act," without determining whether the warrant had been presented at the time of the seizure disposition. The disposition reversed the order below and remanded the case.

Practical checklist

Does the quasi-appeal petition state the date, place, items concerned and authority of the disposition challenged? If identification is insufficient, does the record show whether this was due to insufficient materials delivered by the investigative agency, and whether the court exercised elucidation?

Is there an undertaking waiving ownership of the seized items or a written waiver of the claim for their return? If so, has it been separately checked whether the subsequent handling went through the public notice and vesting procedure under Article 486, and whether continued seizure was still necessary?

If there was a disposition refusing or restricting counsel's participation, are the grounds and basis for the restriction recorded in the record of interrogation of the suspect or elsewhere? Has it been checked which provision applied at the time of the interrogation?

Which part of the warrant was presented at the scene of the seizure? Are there statements, video recordings or records showing whether the person from whom the items were seized requested a specific inspection and how the investigative agency responded?

Glossary

Quasi-appeal: In this brief, the procedure under Article 417 of the Criminal Procedure Act by which a person dissatisfied with a disposition of a prosecutor or a judicial police officer concerning detention, seizure, the return of seized items, or the participation of counsel, etc. requests the competent court to revoke or alter that disposition.

Return: Lifting a seizure and restoring the seized item to the state prior to the seizure. Provisional return is the interim return of an item while the effect of the seizure is maintained.

Power of elucidation: The court's power to question a party and give the party an opportunity to clarify unclear points in its assertions or applications.

Presentation of the warrant: The procedure of showing a search and seizure warrant to the person subject to the disposition; where that person is the defendant, it also includes delivery of a copy.

Sources and limitations

The provisions are based on the current texts retrieved from the Korean National Law Information Center on 16 October 2026. The text of the Criminal Procedure Act retrieved is the version in force from 2 October 2026, and Articles 417, 218-2, 219 and 243-2 bear 2026 amendment notes.

Decision 94Mo51 was rendered before Article 218-2 was inserted, Decision 2003Mo402 before Article 243-2 was inserted, and Decision 2019Mo3526 before Article 118 was amended in 2022. As this brief has not separately checked the texts of the former statutes in force at the time of the decisions, the law in force at the time of the act must be checked when transposing the reasoning of each decision to the current provisions.

Only the headnotes, summaries of holdings and dispositions on the Korean National Law Information Center were checked for the decisions. The dissenting opinion in Decision 94Mo51 is mentioned only to the extent reflected in the summary, and the specific facts of each case are not described.

Points left open

The wording of the current Article 243-2 is framed as a duty of judicial police officers. On what basis and to what extent counsel's participation is guaranteed in interrogation of suspects by prosecutors, and whether such a disposition falls directly within the objects of quasi-appeal under Article 417, cannot be settled from the provisions checked in this brief alone.

Now that jurisdiction over quasi-appeals has shifted to the court corresponding to the Prosecution Service office at each level, or its branch office, to which the prosecutor belongs, how jurisdiction and identification of the authority that made the disposition interact in cases where dispositions were made separately by several investigative agencies remains a matter for practice following Decision 2022Mo1566.

The conflict between the majority opinion, which denied effect to the waiver undertaking, and the dissenting opinion, which recognised it, may be disputed again in relation to the confiscation regime, even after the insertion of Article 218-2, which requires return once a copy has been secured.

Where a defect in presentation of the warrant leads to revocation of the seizure disposition in a quasi-appeal, the summaries of these decisions do not directly address what effect this has on the assessment of the admissibility of the seized items or of derivative evidence (fruit of the poisonous tree).

When to reconsider

This brief will be revised if the provisions of the Criminal Procedure Act on quasi-appeal, return of seized items, counsel's participation or presentation of warrants are amended again, or if the Supreme Court rules on jurisdiction and identification of the authority that made the disposition following the reorganisation of investigative agencies.

It will also be revisited if a provision governing counsel's participation in interrogation of suspects by prosecutors is identified or changed.

Statutes referred to

• 형사소송법 제118조, 제133조, 제218조의2, 제219조, 제243조의2, 제417조, 제418조, 제486조

Decisions referred to

• 대법원 2023. 1. 12. 자 2022모1566 결정 · Decision ledger
• 대법원 1996. 8. 16. 자 94모51 전원합의체 결정 · Decision ledger
• 대법원 2003. 11. 11. 자 2003모402 결정 · Decision ledger
• 대법원 2020. 4. 16. 자 2019모3526 결정 · Decision ledger

Verification status

The cited provisions (Articles 118, 133, 218-2, 219, 243-2, 417, 418 and 486 of the Criminal Procedure Act) were checked against the current texts on the Korean National Law Information Center on 16 October 2026. The cited decisions (Supreme Court, 12 January 2023, 2022Mo1566; Supreme Court, 16 August 1996, 94Mo51; Supreme Court, 11 November 2003, 2003Mo402; Supreme Court, 16 April 2020, 2019Mo3526) were checked against the headnotes, summaries of holdings and dispositions in the texts on the Korean National Law Information Center. The full reasons of the decisions, the texts of the former statutes in force at the time of the decisions, and the lower-court records were not checked.