Open Decision Ledger · Criminal & investigative procedure
Admissibility of Secondary Evidence and Confessions Based on Unlawfully Seized Items, and Limits on the Scope of Seizure of Electronic Information
Translated from the Korean original. Read the Korean
Supreme Court, Mar. 29, 2012, 2011Do10508 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 관세법 위반·관세사법 위반·외국환거래법 위반
Official text on the National Law Information Center
Question
May items that are not the object of the warrant or are unrelated to the alleged facts, and the defendant's confession obtained on the basis thereof, be used as evidence of guilt?
Holding
Evidence collected without observing due process and secondary evidence obtained on the basis thereof are in principle inadmissible, and may be used only in exceptional cases where the causation is attenuated or severed, and this legal principle applies also to confessions obtained on the basis of unlawfully seized items. The Supreme Court treated electronic information that was output or copied in a manner unrelated to the suspicion after the storage medium had been moved outside as the result of unlawful execution, and upheld the court below's judgment denying admissibility of evidence.
Points at issue, verbatim
수사기관이 위법한 압수물을 기초로 피고인의 자백을 얻은 경우에도 동일한 법리가 적용되는지 여부(적극)
Unofficial English translation
whether the same legal principle applies where an investigative authority obtained a confession from the defendant on the basis of unlawfully seized articles (affirmative)
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Existing test applied Read from the decision
앞서 본 법리와 기록에 비추어 살펴보면, 원심의 이유 설시에 다소 적절하지 못한 점은 있으나 원심이 위 증거의 증거능력을 부정하고
Unofficial English translation
Upon examining in light of the legal principle as set forth above and the records, although the statement of reasons by the court below contains some aspects that are somewhat inappropriate, the court below denied the admissibility of the aforesaid evidence and
Factors
- 헌법과 형사소송법이 정한 절차를 위반하여 수집한 증거와 이를 기초로 획득한 2차적 증거의 증거능력 유무(원칙적 소극)
- 수사기관이 위법한 압수물을 기초로 피고인의 자백을 얻은 경우
- 저장매체 자체를 수사기관 사무실 등 외부로 반출할 수 있는 예외적인 경우
- 범죄혐의와 관련성에 대한 구분 없이 임의로 문서를 출력하거나 파일을 복사하는 집행이 적법한지 여부(원칙적 소극)
Unofficial English translation
• Whether evidence collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act and secondary evidence obtained on the basis thereof are admissible in evidence (principally, negative)
• Where an investigative authority obtained a confession from the defendant on the basis of unlawfully seized articles
• The exceptional circumstances in which the storage medium itself may be taken outside, such as to the office of an investigative authority
• Whether an execution whereby documents are arbitrarily printed out or files copied, without any distinction as to their relevance to the suspected crime, is lawful (principally, negative)
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
[1] 대법원 2007. 11. 15. 선고 2007도3061 전원합의체 판결(공2007하, 1974), 대법원 2009. 12. 24. 선고 2009도11401 판결(공2010상, 298), 대법원 2011. 4. 28. 선고 2009도2109 판결(공2011상, 1080) / [2] 대법원 2011. 5. 26.자 2009모1190 결정(공2011하, 1342)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What are the specific circumstances in a confession obtained on the basis of unlawfully seized items that would support a finding that the causation has been attenuated or severed?
If the Criminal Procedure Act provisions on search and seizure of electronic information are amended, or if the Supreme Court clarifies anew the standard for attenuation of causation in secondary 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
When compared with the independent reading of an AI of another lineage (GPT-6 Astra), which read only the original text without seeing the primary reading, 7 of the 8 axes agreed, and the readings diverged on axis 4 (Form of the test).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Circumstances weighed”
Because the original text addresses both the standard for determining admissibility of evidence and the lawfulness of the execution of the seizure of electronic information, the primary reading may place weight on the application to the specific execution, while the independent reading may place weight on the decision standard for recognizing the exception.
헌법과 형사소송법이 정한 절차를 위반하여 수집한 증거와 이를 기초로 획득한 2차적 증거의 증거능력 유무(원칙적 소극)와 그 판단 기준Raw 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 found that the relevant documents and printouts of computer data, which were evidence as to the charge of violation of the Customs Act relating to "○○ Logistics" concerning Defendant 3, were not items subject to seizure under the search and seizure warrant or were unrelated to the alleged facts, and that the confession made before the investigative agency was also obtained on the basis thereof, so that it could not be found that the causation between the procedural violation and the secondary collection of evidence had been attenuated or severed; on that basis, it affirmed the first-instance judgment of not guilty on the merits. It also affirmed the finding of not guilty as to the charge of violation of the Certified Customs Broker Act.
Supreme Court standard: The Supreme Court, after confirming the legal principles of the en banc judgment in Supreme Court Decision 2007Do3061 and of Supreme Court Decision 2009Mo1190 and stating that these principles apply also to confessions obtained on the basis of unlawfully seized items, held that although there are some aspects of the court below's statement of reasons that are not entirely appropriate, its conclusion denying admissibility of evidence and finding the defendant not guilty is justifiable, and dismissed the prosecution's final appeal. The final appeals of Defendant 1 and Defendant 2, a stock company, were dismissed on the ground that no statement of grounds for final appeal was submitted within the statutory period and the notices of final appeal contained no statement of grounds, and the prosecution's final appeal as to the guilty portion also contained no statement of grounds and was dismissed.
Distinguishing conditions
- A case in which the seized items were collected limited to the portions related to the alleged facts stated in the warrant
- A case in which there were circumstances making it impossible or manifestly difficult to output or copy only the relevant portions at the scene of execution, and the removal of the storage medium was stated in the warrant
- A case in which there are circumstances warranting a finding that the causation between the unlawful collection of evidence and the confession has been attenuated or severed
Record verification notes
Before asserting the same conclusion, first check how the content and degree of the procedural violation, the possibility of avoidance, the knowledge and intent of the investigative agency, and the circumstances attenuating the causation between the unlawful collection and the secondary evidence appear in the record.
From the official text
Points at issue
[1] 헌법과 형사소송법이 정한 절차를 위반하여 수집한 증거와 이를 기초로 획득한 2차적 증거의 증거능력 유무(원칙적 소극)와 그 판단 기준 및 수사기관이 위법한 압수물을 기초로 피고인의 자백을 얻은 경우에도 동일한 법리가 적용되는지 여부(적극) [2] 전자정보에 대한 압수·수색영장을 집행할 때 저장매체 자체를 수사기관 사무실 등 외부로 반출할 수 있는 예외적인 경우 및 수사기관 사무실 등으로 옮긴 저장매체에서 범죄혐의와 관련성에 대한 구분 없이 임의로 문서를 출력하거나 파일을 복사하는 집행이 적법한지 여부(원칙적 소극)
Unofficial English translation
[1] Whether evidence collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act and secondary evidence obtained on the basis thereof are admissible in evidence (principally, negative) and the criteria for that determination, and whether the same legal principle applies where an investigative authority obtained a confession from the defendant on the basis of unlawfully seized articles (affirmative) [2] The exceptional circumstances in which the storage medium itself may be taken outside, such as to the office of an investigative authority, when executing a search and seizure warrant for electronic information, and whether an execution whereby documents are arbitrarily printed out or files copied from a storage medium moved to an office of an investigative authority, without any distinction as to their relevance to the suspected crime, is lawful (principally, negative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Provisions referred to
[1] 헌법 제12조 제1항, 제3항, 형사소송법 제215조, 제308조의2 [2] 헌법 제12조 제1항, 제3항, 형사소송법 제114조, 제215조
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.
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