Open Decision Ledger · Criminal & investigative procedure
Objective relevance of unrelated filming materials found during seizure of a mobile phone and their admissibility of evidence where the right to participate was not guaranteed
Translated from the Korean original. Read the Korean
Supreme Court, Dec. 30, 2021, 2019Do10309 (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: 성폭력범죄의처벌등에관한특례법위반(카메라등이용촬영)
Official text on the National Law Information Center
Question
Even where an unrelated video has objective relevance to the suspected offense stated in the warrant, may it not be used as evidence of guilt if the person whose property was seized was not guaranteed the right to participate during the processes of searching, copying, and printing out the data?
Holding
The Supreme Court held that the objective relevance of the unrelated video was recognized, since it could be used as indirect evidence or circumstantial evidence proving the motive, circumstances, means, and the like of the suspected offense stated in the warrant. However, as there was no record showing that the right to participate was guaranteed, the video fell under illegally obtained evidence, and the Court held that it could not be used as evidence because the prosecution had failed to prove the existence of exceptional circumstances.
Points at issue, verbatim
피압수자나 변호인에게 참여의 기회를 보장하고 혐의사실과 무관한 전자정보의 임의적인 복제 등을 막기 위한 적절한 조치를 취하지 않은 경우, 압수·수색의 적법 여부(원칙적 소극)
Unofficial English translation
where no appropriate measures were taken to guarantee the person subject to seizure or his/her counsel an opportunity to participate and to prevent the arbitrary duplication, etc. of electronic information unrelated to the suspected facts, the lawfulness of the search and seizure (in principle, negative)
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Existing test applied Read from the decision
피고인의 참여권이 보장되었다는 점을 인정할 자료가 없으므로 이 사건 각 동영상은 위법수집증거에 해당하여 유죄의 증거로 사용할 수 없다.
Unofficial English translation
As there is no material to acknowledge that the defendant's right to participate was guaranteed, each of the videos in this case constitutes illegally obtained evidence and cannot be used as evidence of guilt.
Factors
- 해당 사건과 관계가 있다고 인정할 수 있는 것
- 압수·수색영장의 범죄 혐의사실과 객관적 관련성이 인정되는 범위와 판단 기준
- 피압수자나 변호인에게 참여의 기회를 보장하고
- 혐의사실과 무관한 전자정보의 임의적인 복제 등을 막기 위한 적절한 조치
- 적법한 절차에 따르지 아니하고 수집한 증거를 예외적으로 유죄 인정의 증거로 사용할 수 있는 경우
Unofficial English translation
• things that may be regarded as having a connection with the relevant case
• the scope in which objective relevance to the facts of the crime suspected as stated in the search and seizure warrant is recognized, and the criteria for determination
• guaranteeing the person subject to seizure or his/her counsel an opportunity to participate and
• appropriate measures to prevent the arbitrary duplication, etc. of electronic information unrelated to the suspected facts
• cases where evidence collected without following lawful procedures may exceptionally be used as evidence supporting a finding of guilt
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2015. 7. 16. 자 2011모1839 전원합의체 결정 참조
Unofficial English translation
refer to Supreme Court en banc Decision 2011Mo1839 decided July 16, 2015
Decisions referred to
[1] 대법원 2017. 12. 5. 선고 2017도13458 판결(공2018상, 141), 대법원 2021. 7. 29. 선고 2021도3756 판결, 대법원 2021. 8. 26. 선고 2021도2205 판결 / [2] 대법원 2015. 7. 16. 자 2011모1839 전원합의체 결정(공2015하, 1274), 대법원 2020. 11. 26. 선고 2020도10729 판결(공2021상, 171) / [3] 대법원 2009. 3. 12. 선고 2008도763 판결(공2009상, 503), 대법원 2017. 9. 21. 선고 2015도12400 판결(공2017하, 2033)
Burden of proof
The prosecution Stated in the decision
그러한 예외적인 사정이 존재한다는 점에 대한 증명책임 소재(=검사)
Unofficial English translation
the party bearing the burden of proof as to the existence of such exceptional circumstances (=the prosecutor)
Open question and revisit condition
Apart from the circumstance that the person whose property was seized did not contest the illegality of the seizure procedure at the investigation stage, what specific circumstances are required before evidence obtained without guaranteeing the right to participate may exceptionally be used as evidence of guilt?
This reading will be rechecked if an en banc decision is rendered on the scope of the guarantee of the right to participate in search and seizure of electronic information or on the criteria for exceptions to the exclusion of illegally obtained evidence.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
In comparison with an independent reading by another family of AI (GPT-6 Astra), which read only the original text without seeing the primary reading, 7 of the 8 axes matched, while the readings diverged on the 4th axis (Form of the test).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Circumstances weighed”
The Holdings address both the criteria for determining objective relevance and the exclusion of evidence and its exceptions where the right to participate is not guaranteed, so the reading may differ depending on whether the focus is placed on the comprehensiveness of the relevance analysis or on the application to the facts of the law of exclusion of evidence.
범죄 혐의사실과 객관적 관련성이 인정되는 범위와 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 of first instance found that the respective videos in this case had no objective relevance to the suspected offenses stated in the warrants, that they were illegally obtained evidence because the defendant was not guaranteed the right to participate during the processes of searching, copying, and printing out the data, and that there was no evidence corroborating the confession, and therefore rendered a judgment of not guilty; the court below dismissed the prosecution's appeal, holding that the judgment of the court of first instance was just.
Supreme Court standard: The Supreme Court held that the court below had misapprehended legal principles, because the respective videos could be used as indirect evidence or circumstantial evidence proving the motive, circumstances, means, and the like of the offenses and there was also a concrete and individual connection, so that objective relevance was recognized. However, the Court dismissed the final appeal, holding that the error had no effect on the judgment, since the videos were illegally obtained evidence owing to the failure to guarantee the right to participate and did not fall within any exception on the basis of the prosecution's assertions alone.
Distinguishing conditions
- Where the person whose property was seized explicitly expressed an intention not to participate
- Where there are special circumstances such that, in light of the process and content of the procedural violation, it cannot be said that the purpose of guaranteeing participation was substantially infringed
- Where unrelated evidence was seized merely because it involved offenses of the same or a similar type as the suspected offenses stated in the warrant, and there is no concrete and individual connection
Record verification notes
Before asserting the same conclusion, one must first check the records as to whether an opportunity to participate was actually given to the person whose property was seized or to counsel at each stage of searching, copying, and printing out, and whether any intention to waive participation was expressly stated.
From the official text
Points at issue
[1] 형사소송법 제215조 제1항에 따라 영장에 의하여 압수·수색을 할 수 있는 ‘해당 사건과 관계가 있다고 인정할 수 있는 것’의 의미 / 이때 압수·수색영장의 범죄 혐의사실과 객관적 관련성이 인정되는 범위와 판단 기준 [2] 전자정보가 담긴 저장매체 또는 복제본을 수사기관 사무실 등으로 옮겨 복제·탐색·출력하는 일련의 과정에서, 피압수자나 변호인에게 참여의 기회를 보장하고 혐의사실과 무관한 전자정보의 임의적인 복제 등을 막기 위한 적절한 조치를 취하지 않은 경우, 압수·수색의 적법 여부(원칙적 소극) / 이때 수사기관이 저장매체 또는 복제본에서 혐의사실과 관련된 전자정보만을 복제·출력하였더라도 마찬가지인지 여부(적극) [3] 적법한 절차에 따르지 아니하고 수집한 증거를 예외적으로 유죄 인정의 증거로 사용할 수 있는 경우 및 그러한 예외적인 사정이 존재한다는 점에 대한 증명책임 소재(=검사)
Unofficial English translation
[1] The meaning of "things that may be regarded as having a connection with the relevant case," which may be searched and seized by warrant pursuant to Article 215 (1) of the Criminal Procedure Act / The scope in which objective relevance to the facts of the crime suspected as stated in the search and seizure warrant is recognized in this regard, and the criteria for determination [2] In a series of processes of moving a storage medium or copy containing electronic information to the office of the investigative agency, etc. and duplicating, searching, and printing out the same, whether the search and seizure is lawful where no appropriate measures were taken to guarantee the person subject to seizure or his/her counsel an opportunity to participate and to prevent the arbitrary duplication, etc. of electronic information unrelated to the suspected facts (in principle, negative) / Whether the same applies even where the investigative agency duplicated and printed out only electronic information related to the suspected facts from the storage medium or copy (affirmative) [3] Cases where evidence collected without following lawful procedures may exceptionally be used as evidence supporting a finding of guilt, and the party bearing the burden of proof as to the existence of such exceptional circumstances (=the prosecutor)
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 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
[1] 형사소송법 제215조 제1항 [2] 형사소송법 제121조, 제215조, 제219조 [3] 형사소송법 제307조, 제308조, 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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