Open Decision Ledger · Criminal & investigative procedure
Admissibility of Evidence of Items Seized Without a Warrant, by Voluntary Submission, from a Person Who Is Not the Owner, Possessor, or Custodian, and of Photographs Thereof
Translated from the Korean original. Read the Korean
Supreme Court, Jan. 28, 2010, 2009Do10092 (judgment)
Case name: 폭력행위등처벌에관한법률위반(집단·흉기등상해)·폭력행위등처벌에관한법률위반(집단·흉기등재물손괴등)
Official text on the National Law Information Center
Question
Where an item submitted by a person who is not the owner, possessor, or custodian is seized without a warrant in violation of Article 218 of the Criminal Procedure Act, may that seized item and a photograph of the seized item be used as evidence to establish guilt if the defendant consents to their use as evidence?
Holding
The seized item and the photograph of the seized item may not be used as evidence to establish guilt. The Supreme Court held that, in light of the importance of the warrant requirement, the conclusion would not change even if the defendant or defense counsel consented to their use as evidence.
Summary of the holding, verbatim
위 규정을 위반하여 소유자, 소지자 또는 보관자가 아닌 자로부터 제출받은 물건을 영장없이 압수한 경우 그 ‘압수물’ 및 ‘압수물을 찍은 사진’은 이를 유죄 인정의 증거로 사용할 수 없는 것이고, 헌법과 형사소송법이 선언한 영장주의의 중요성에 비추어 볼 때 피고인이나 변호인이 이를 증거로 함에 동의하였다고 하더라도 달리 볼 것은 아니다.
Unofficial English translation
Where, in violation of the above provision, an article submitted by a person who is not the owner, possessor, or custodian is seized without a warrant, the "seized article" and "photographs of the seized article" cannot be used as evidence to support a finding of guilt, and, in light of the importance of the warrant requirement principle declared by the Constitution and the Criminal Procedure Act, the same conclusion should be reached even if the defendant or the defense counsel has consented to their use as evidence.
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Elements stated Stated in the decision
소유자, 소지자 또는 보관자가 아닌 자로부터 제출받은 물건을 영장없이 압수한 경우
Unofficial English translation
Where an article submitted by a person who is not the owner, possessor, or custodian is seized without a warrant
Factors
- 소유자, 소지자 또는 보관자가 아닌 자로부터 제출받은 물건을 영장없이 압수한 경우
- 압수물을 찍은 사진
- 헌법과 형사소송법이 선언한 영장주의의 중요성
- 피고인이나 변호인이 이를 증거로 함에 동의하였다고 하더라도
Unofficial English translation
• Where an article submitted by a person who is not the owner, possessor, or custodian is seized without a warrant
• Photographs of the seized article
• The importance of the warrant requirement principle declared by the Constitution and the Criminal Procedure Act
• Even if the defendant or the defense counsel has consented to their use as evidence
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2007. 11. 15. 선고 2007도3061 전원합의체 판결
Unofficial English translation
Supreme Court en banc judgment 2007Do3061 decided November 15, 2007
Decisions referred to
대법원 2007. 11. 15. 선고 2007도3061 전원합의체 판결(공2007하, 1974), 대법원 2009. 3. 12. 선고 2008도11437 판결(공2009상, 900), 대법원 2009. 12. 24. 선고 2009도11401 판결(공2010상, 298)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the boundary as to whether the person who submitted the item falls within the category of owner, possessor, or custodian is unclear, for example where the victim was in actual possession of the item, is the same conclusion maintained?
If subsequent case law emerges concerning the requirements for seizure by voluntary submission under Article 218 of the Criminal Procedure Act, or concerning the relationship between illegally obtained evidence and consent to evidence, this reading will be re-examined.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
Compared against an independent reading by a different family of AI (GPT-6 Astra), which read only the original text without seeing the first reading, 7 of the 8 axes matched, and the readings diverged on the eighth axis (Open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Where the boundary as to whether the person who submitted the item falls within the category of owner, possessor, or custodian is unclear, for example where the victim was in actual possession of the item, is the same conclusion maintained?” vs Independent “Under what conditions is the admissibility of evidence recognized for separate subsequent evidence obtained on the occasion of such an unlawful seizure?”
The first reading asks about the boundary as to whether the submitter falls within the category of lawful possessor or the like, while the independent reading asks about the conditions for the admissibility of subsequent evidence obtained through an unlawful seizure.
위 규정을 위반하여 소유자, 소지자 또는 보관자가 아닌 자로부터 제출받은 물건을 영장없이 압수한 경우 그 ‘압수물’ 및 ‘압수물을 찍은 사진’은 이를 유죄 인정의 증거로 사용할 수 없는 것이고, 헌법과 형사소송법이 선언한 영장주의의 중요성에 비추어 볼 때 피고인이나 변호인이 이를 증거로 함에 동의하였다고 하더라도 달리 볼 것은 아니다.Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below (Daejeon District Court, 2009No1612), citing the judgment of the court of first instance, admitted as evidence to establish guilt a photograph taken after a steel pipe owned by the defendant, which a police officer had found in the front yard of the defendant's residence, had been seized in the form of voluntary submission by the victim, on the basis of the defendant's consent to evidence.
Supreme Court standard: The Supreme Court viewed that the seized item and the photograph were collected in violation of the warrant requirement, or constituted evidence based thereon, and therefore infringed upon the substantive content of due process, so that notwithstanding the consent to evidence they could not be used as evidence, and the admission of evidence by the court below was erroneous. However, it dismissed the final appeal, stating that the remaining evidence, excluding these, was sufficient to establish guilt and thus did not affect the outcome of the judgment.
Distinguishing conditions
- Where the person who submitted the item was in fact the owner, possessor, or custodian of that item
- Where a warrant was issued at the time of seizure, or where another lawful basis for seizure, such as a subsequent warrant, was in place
- Where guilt cannot readily be established on the basis of the remaining evidence, excluding the illegally obtained evidence, such that the outcome of the judgment is affected
Record verification notes
Before asserting the same conclusion, one first checks whether the person who submitted the item was in actual control or custody of that item, and whether, even if that evidence is excluded, the crime is established by the remaining evidence and the conclusion does not change.
From the official text
Points at issue
형사소송법 제218조를 위반하여 소유자, 소지자 또는 보관자가 아닌 자로부터 제출받은 물건을 영장없이 압수한 경우, 그 ‘압수물’ 및 ‘압수물을 찍은 사진’의 증거능력 유무(소극)
Unofficial English translation
Whether the 'seized articles' and 'photographs of the seized articles' obtained without a warrant from a person who is not the owner, possessor, or custodian, in violation of Article 218 of the Criminal Procedure Act, have admissibility of evidence (negative)
Summary of the holding
형사소송법 제218조는 "사법경찰관은 소유자, 소지자 또는 보관자가 임의로 제출한 물건을 영장없이 압수할 수 있다"고 규정하고 있는바, 위 규정을 위반하여 소유자, 소지자 또는 보관자가 아닌 자로부터 제출받은 물건을 영장없이 압수한 경우 그 ‘압수물’ 및 ‘압수물을 찍은 사진’은 이를 유죄 인정의 증거로 사용할 수 없는 것이고, 헌법과 형사소송법이 선언한 영장주의의 중요성에 비추어 볼 때 피고인이나 변호인이 이를 증거로 함에 동의하였다고 하더라도 달리 볼 것은 아니다.
Order
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
형사소송법 제217조, 제308조의2, 제318조 제1항
Read 2026-10-16 · Cross-read 2026-10-16. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
Back to the ledger