Open Decision Ledger · Criminal & investigative procedure
Admissibility of Evidence of Seized Items Unrelated to the Suspected Offense Stated in the Warrant, and the Burden of Proving Voluntariness of a Voluntary Submission After Return
Translated from the Korean original. Read the Korean
Supreme Court, Mar. 10, 2016, 2013Do11233 (judgment)
Case name: 배임수재·축산물가공처리법위반·사기·특정범죄가중처벌등에관한법률위반(조세)·조세범처벌법위반
Official text on the National Law Information Center
Question
Where evidence seized in a manner unrelated to the suspected offense stated in the warrant is returned and then voluntarily submitted again, may that evidence be used as evidence to support a finding of guilt?
Holding
In principle, separate evidence unrelated to the suspected offense stated in the warrant cannot serve as evidence to support a finding of guilt. Although a voluntary submission after return may sever the chain of causation, the voluntariness of the submission must be proved by the prosecution to the extent of excluding reasonable doubt, and if such proof is absent, admissibility of evidence is denied.
Summary of the holding, verbatim
제출에 임의성이 있다는 점에 관하여는 검사가 합리적 의심을 배제할 수 있을 정도로 증명하여야 하고, 임의로 제출된 것이라고 볼 수 없는 경우에는 증거능력을 인정할 수 없다.
Unofficial English translation
As to whether the submission was voluntary, the prosecutor must prove it to the extent that reasonable doubt is excluded, and where it cannot be regarded as having been voluntarily submitted, the admissibility of evidence cannot be recognized.
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Elements stated Stated in the decision
영장 발부의 사유로 된 범죄 혐의사실과 무관한 별개의 증거를 압수하였을 경우 이는 원칙적으로 유죄 인정의 증거로 사용할 수 없다.
Unofficial English translation
Where separate evidence unrelated to the suspected crime that formed the grounds for the issuance of a warrant has been seized, such evidence may not, in principle, be used as evidence for a guilty finding.
Factors
- 영장 발부의 사유로 된 범죄 혐의사실과 관련된 증거에 한하여
- 최초의 절차 위반행위와 최종적인 증거수집 사이의 인과관계가 단절되었다고 평가할 수 있으나
- 수사기관의 우월적 지위에 의하여 임의제출 명목으로 실질적으로 강제적인 압수가 행하여질 수 있으므로
- 임의로 제출된 것이라고 볼 수 없는 경우에는 증거능력을 인정할 수 없다.
Unofficial English translation
• limited to evidence related to the suspected crime that formed the grounds for the issuance of the warrant
• although the causation between the initial procedural violation and the ultimate collection of evidence may be evaluated as severed
• because, in view of the dominant position of the investigative agency, a seizure that is in substance compulsory may be carried out under the guise of a voluntary submission
• where it cannot be regarded as having been voluntarily submitted, the admissibility of evidence cannot be recognized.
Relation to precedent
States a new standard Read from the decision
수사기관이 별개의 증거를 피압수자 등에게 환부하고 후에 임의제출받아 다시 압수하였다면
Unofficial English translation
Where an investigative agency has returned separate evidence to the person from whom it was seized and later re-seized it after receiving a voluntary submission
Decisions referred to
None listed
Burden of proof
The prosecution Stated in the decision
검사가 합리적 의심을 배제할 수 있을 정도로 증명하여야 하고
Unofficial English translation
the prosecutor must prove it to the extent that reasonable doubt is excluded, and
Open question and revisit condition
Even where the items were submitted to an administrative agency such as a tax official rather than to an investigative agency, does the same standard of proof of voluntariness apply as is, and what specific circumstances may support a finding of voluntariness?
This reading will be rechecked if Articles 215, 218, and 308-2 of the Criminal Procedure Act are amended, or if subsequent decisions emerge concerning the determination of voluntariness of a voluntary submission after return.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
When compared with an independent reading by another AI (GPT-6 Astra), which read only the original text without seeing the first reading, 6 of the 8 axes matched, and the readings diverged on axis 6 (Relation to precedent) and axis 8 (Open question and revisit condition).
Axis 6 (Relation to precedent): Primary “States a new standard” vs Independent “Cannot be determined”
Because the original text explicitly sets out the prosecution's burden of proof of voluntariness and the degree of proof, the first reading may read it as setting a new standard, but since the relation to earlier decisions is not presented, the independent reading may read it as Cannot be determined.
수사기관이 별개의 증거를 피압수자 등에게 환부하고 후에 임의제출받아 다시 압수하였다면Axis 8 (Open question and revisit condition): Primary “Even where the items were submitted to an administrative agency such as a tax official rather than to an investigative agency, does the same standard of proof of voluntariness apply as is, and what specific circumstances may support a finding of voluntariness?” vs Independent “What specific circumstances must be confirmed in the course of re-submission after return before the voluntariness of the submission can be found beyond reasonable doubt?”
Both ask about the specific circumstances that may support a finding of voluntariness, but the first reading includes, as a separate key question, whether the same standard of proof applies to submission to an administrative agency.
제출에 임의성이 있다는 점에 관하여는 검사가 합리적 의심을 배제할 수 있을 정도로 증명하여야 하고, 임의로 제출된 것이라고 볼 수 없는 경우에는 증거능력을 인정할 수 없다.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 held that the tax-evasion-related documents seized from Defendant 2 were not the objects of seizure specified in the warrant and that, in the absence of a separate warrant or service of a list of seized items, they lacked admissibility of evidence; however, it held that the USB on which the business performance record was stored had been returned to Non-indicted 5 and voluntarily submitted by Non-indicted 5 to tax official Non-indicted 6, so that it was lawfully obtained evidence and that evidence based on it as well as the in-court statements of Defendant 1 could also be used as evidence of guilt.
Supreme Court standard: The Supreme Court held that, in light of the circumstances of the seizure of the USB, the non-preparation of a seizure record, the investigative agency's long-term retention of the item, the omission of the USB from the list on the receipt, the detention status of Defendant 1, and the threatening statements of Non-indicted 5, the return and the voluntary submission themselves are doubtful and voluntariness was not proved; it denied the admissibility of the USB and the business performance record and pointed out the court below's misapprehension of legal principles. However, finding that the tax-evasion facts could be amply established by the remaining evidence alone, which was unrelated to the business performance record or as to which the chain of causation had been severed, and that the outcome of the judgment was therefore unaffected, it dismissed the final appeal in its entirety.
Distinguishing conditions
- Where the seized item is recognized as evidence related to the suspected offense that constituted the grounds for the issuance of the warrant
- Where it is proved that return to the person whose items were seized was actually carried out, that procedures such as service of the list of seized items and preparation of a seizure record were completed, and that the item was submitted without any demand or pressure from the investigative agency
- Where the facts charged are established by the remaining evidence alone, excluding illegally obtained evidence, so that the error in the determination of admissibility of evidence does not affect the outcome of the judgment
Record verification notes
Before asserting the same conclusion, one must check whether the fact of return is objectively verifiable, whether there were coercive circumstances at the time of submission such as the investigative agency's superior position or a notification of disadvantages, and whether the facts charged are established by independently obtained evidence alone, unrelated to illegally obtained evidence.
From the official text
Points at issue
검사 또는 사법경찰관이 영장 발부 사유로 된 범죄 혐의사실과 무관한 별개의 증거를 압수한 경우, 유죄 인정의 증거로 사용할 수 있는지 여부(원칙적 소극) / 수사기관이 별개의 증거를 환부하고 후에 임의제출받아 다시 압수한 경우, 제출에 임의성이 있다는 점에 관한 증명책임 소재(=검사)와 증명 정도 및 임의로 제출된 것이라고 볼 수 없는 경우 증거능력을 인정할 수 있는지 여부(소극)
Unofficial English translation
Where an investigative agency has seized separate evidence unrelated to the suspected crime that formed the grounds for the issuance of a warrant, whether such evidence may be used as evidence for a guilty finding (in principle, negative) / Where an investigative agency has returned separate evidence and later re-seized it after receiving a voluntary submission, the allocation of the burden of proof (on the prosecutor) as to whether the submission was voluntary, the degree of proof required, and whether the admissibility of evidence may be recognized where it cannot be regarded as having been voluntarily submitted (negative)
Summary of the holding
검사 또는 사법경찰관은 범죄수사에 필요한 때에는 피의자가 죄를 범하였다고 의심할 만한 정황이 있는 경우에 판사로부터 발부받은 영장에 의하여 압수·수색을 할 수 있으나, 압수·수색은 영장 발부의 사유로 된 범죄 혐의사실과 관련된 증거에 한하여 할 수 있으므로, 영장 발부의 사유로 된 범죄 혐의사실과 무관한 별개의 증거를 압수하였을 경우 이는 원칙적으로 유죄 인정의 증거로 사용할 수 없다. 다만 수사기관이 별개의 증거를 피압수자 등에게 환부하고 후에 임의제출받아 다시 압수하였다면 증거를 압수한 최초의 절차 위반행위와 최종적인 증거수집 사이의 인과관계가 단절되었다고 평가할 수 있으나, 환부 후 다시 제출하는 과정에서 수사기관의 우월적 지위에 의하여 임의제출 명목으로 실질적으로 강제적인 압수가 행하여질 수 있으므로, 제출에 임의성이 있다는 점에 관하여는 검사가 합리적 의심을 배제할 수 있을 정도로 증명하여야 하고, 임의로 제출된 것이라고 볼 수 없는 경우에는 증거능력을 인정할 수 없다.
Order
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Provisions referred to
형사소송법 제106조, 제114조, 제129조, 제215조, 제218조, 제219조, 제307조, 제308조의2
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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