Open Decision Ledger · Criminal & investigative procedure
Admissibility of Evidence Where the Right to Participate Is Not Guaranteed in Searching Electronic Information of a Mobile Phone, and the Capacity of Voluntary Submission Documents to Corroborate a Confession
Translated from the Korean original. Read the Korean
Supreme Court, Nov. 17, 2022, 2019Do11967 (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
Where the admissibility of evidence of electronic information that was searched, copied, and printed out without affording the person from whom it was seized an opportunity to participate is denied, may documents relating to the voluntary submission made at the scene of the offense serve as corroborating evidence of a confession?
Holding
Electronic information that is searched, copied, and printed out without guaranteeing the right to participate or furnishing a list of the electronic information has no admissibility of evidence as illegally obtained evidence, and is not cured even by subsequent consent to the evidence. However, the Supreme Court held that the written statement of voluntary submission, the seizure record, and the like, based on the fact that the mobile phone was received by voluntary submission and seized at the scene immediately after the offense, are independent evidence distinct from the electronic information, and that there is considerable scope for them to serve as corroborating evidence of the confession as to that offense committed at the scene.
Points at issue, verbatim
이러한 위법한 압수·수색 과정을 통하여 취득한 증거는 위법수집증거에 해당하는지 여부(적극)
Unofficial English translation
whether evidence obtained through such an illegal search and seizure process falls within illegally obtained evidence (affirmative)
Disposition
Partly reversed and remanded Stated in the decision
이 부분 사건을 서울중앙지방법원에 환송한다.
Unofficial English translation
this part of the case is remanded to the Seoul Central District Court.
Form of the test
Existing test applied Stated in the decision
위와 같은 사실관계를 앞서 본 법리에 비추어 살펴보면
Unofficial English translation
Examining the foregoing facts in light of the legal principle reviewed above,
Factors
- 피압수자 측에 참여의 기회를 보장하는 등의 적절한 조치를 취하지 않은 경우
- 정보저장매체 등을 수사기관 사무실 등으로 옮겨 탐색·복제·출력하는 일련의 과정
- 사후에 법원으로부터 영장이 발부되었거나 피고인이나 변호인이 이를 증거로 함에 동의하면 그 위법성이 치유되는지 여부(소극)
- 자백에 대한 보강증거의 정도
Unofficial English translation
• where appropriate measures, such as affording the person subjected to seizure an opportunity to participate, were not taken
• a series of processes of moving the storage medium, etc. to the investigative agency's office, etc. and searching, copying, and printing the same
• whether the illegality is cured if a warrant is subsequently issued by a court or if the defendant or the defense counsel consents to the use thereof as evidence (negative)
• the degree of corroborating evidence for a confession
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2021. 11. 18. 선고 2016도348 전원합의체 판결
Unofficial English translation
Supreme Court en banc Decision 2016Do348 decided November 18, 2021
Decisions referred to
[1] 대법원 2015. 7. 16. 자 2011모1839 전원합의체 결정(공2015하, 1274), 대법원 2021. 11. 18. 선고 2016도348 전원합의체 판결(공2022상, 57), 대법원 2022. 7. 28. 선고 2022도2960 판결(공2022하, 1817) / [2] 대법원 1994. 9. 30. 선고 94도1146 판결(공1994하, 2917), 대법원 2000. 9. 26. 선고 2000도2365 판결(공2000하, 2264)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What is the specific standard for concluding that documents relating to the voluntary submission made at the scene of the offense cannot serve as corroborating evidence as to offenses committed at other times and places that were found on the same mobile phone?
If the Criminal Procedure Act provisions or an en banc decision of the Supreme Court on the requirements for guaranteeing the right to participate in search and seizure of electronic information changes, this reading will be re-examined.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
In comparison with an independent reading by a different AI line (GPT-6 Astra), which read only the original text without seeing the primary reading, 6 of the 8 axes matched, and the readings diverged on the 4th axis (Form of the test) and the 8th axis (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
While the original text states the legality requirements for seizure of electronic information and the degree of corroboration required, its holding reverses and remands only the offense at No. 26; thus the independent reading may place weight on the general requirements, and the primary reading on the application to a specific offense.
피압수자 측에 참여의 기회를 보장하는 등의 적절한 조치를 취하지 않은 경우Axis 8 (Open question and revisit condition): Primary “What is the specific standard for concluding that documents relating to the voluntary submission made at the scene of the offense cannot serve as corroborating evidence as to offenses committed at other times and places that were found on the same mobile phone?” vs Independent “Whether, upon the remand court's examination of the independent seizure-related documents, they can be found sufficient to corroborate the confession to the offense at No. 26?”
The primary reading asks about the limits on the use of corroborating evidence for offenses committed at different times and places, while the independent reading asks about the sufficiency of the actual corroboration for the offense at No. 26 that was remanded.
이러한 위법한 압수·수색 과정을 통하여 취득한 증거는 위법수집증거에 해당하는지 여부(적극)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 reversed the conviction rendered by the trial court and pronounced a finding of not guilty on all counts of the indictment, on the ground that there was no evidence that the police had guaranteed the defendant an opportunity to participate in the process of copying, searching, and printing out onto a CD the videos of the voluntarily submitted mobile phone, that the CD and the printed photographs therefore had no admissibility of evidence, and that the only remaining evidence was the confession and there was thus no corroborating evidence.
Supreme Court standard: The Supreme Court found justifiable the determination of the court below denying the admissibility of evidence of the CD and the printed photographs. However, as to the offense at item No. 26 of the table of offenses, it held that the written statement of voluntary submission, the seizure record, the list of seized items, the photographs of the seized items, and the confirmation form regarding waiver of ownership, all prepared at the scene, are independent evidence unrelated to the admissibility of evidence of the electronic information, and that there is considerable scope for them to corroborate the confession, and therefore reversed and remanded this part, while dismissing the prosecution's final appeal as to items No. 1 through No. 25.
Distinguishing conditions
- Where the party from whom the items were seized has expressly stated an intention not to participate in the process of searching, copying, and printing out
- Where, in view of the nature and content of the procedural violation, there are special circumstances such that the purpose of guaranteeing the right to participate cannot be regarded as having been substantially infringed
- Where the documents relating to the voluntary submission are not connected to the scene and time of the offense confessed to, and thus cannot guarantee the truthfulness of that offense (as with items No. 1 through No. 25 in this case)
Record verification notes
Before asserting the same conclusion, it needs to be checked whether the documents advanced as corroborating evidence are independent evidence that does not rely on the contents of the electronic information obtained unlawfully, and whether those documents guarantee the truthfulness of the individual offense confessed to itself.
From the official text
Points at issue
[1] 압수의 대상이 되는 전자정보와 그렇지 않은 전자정보가 혼재된 정보저장매체나 그 복제본을 압수·수색한 수사기관이 정보저장매체 등을 수사기관 사무실 등으로 옮겨 탐색·복제·출력하는 일련의 과정에서 피압수자 측에 참여의 기회를 보장하는 등의 적절한 조치를 취하지 않은 경우, 압수·수색의 적법 여부(원칙적 소극) / 이러한 위법한 압수·수색 과정을 통하여 취득한 증거는 위법수집증거에 해당하는지 여부(적극) 및 사후에 법원으로부터 영장이 발부되었거나 피고인이나 변호인이 이를 증거로 함에 동의하면 그 위법성이 치유되는지 여부(소극) [2] 자백에 대한 보강증거의 정도
Unofficial English translation
[1] Legality of search and seizure (negative in principle) / whether evidence obtained through such an illegal search and seizure process falls within illegally obtained evidence (affirmative) and whether the illegality is cured if a warrant is subsequently issued by a court or if the defendant or the defense counsel consents to the use thereof as evidence (negative) where an investigative agency has seized and searched a storage medium, or a copy thereof, in which information subject to seizure is mixed with information that is not, and has failed to take appropriate measures, such as affording the person subjected to seizure an opportunity to participate, in the course of a series of processes of moving the storage medium, etc. to the investigative agency's office, etc. and searching, copying, and printing the same [2] The degree of corroborating evidence for a confession
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
원심판결 중 원심 판시 별지 범죄일람표 순번 제26번에 관한 「성폭력범죄의 처벌 등에 관한 특례법」위반(카메라등이용촬영) 부분을 파기하고, 이 부분 사건을 서울중앙지방법원에 환송한다. 나머지 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed in so far as it concerns the violation of the "Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes" (photographing using a camera, etc.) under item No. 26 of the attached table of crimes as found by the court below, and this part of the case is remanded to the Seoul Central District Court. The remainder of the final appeal is dismissed.
Provisions referred to
[1] 형사소송법 제106조, 제121조, 제122조, 제129조, 제215조, 제219조, 제308조의2, 제318조 [2] 형사소송법 제310조
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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