Open Decision Ledger · Criminal & investigative procedure
Seizure record by statement and proof of voluntary submission
Supreme Court, June 1, 2023, 2020Do2480 (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 a judicial police officer seized evidence voluntarily submitted by a suspect, did recording the seizure in the suspect's statement in place of a seizure report, under Article 119(3) of the former (National Police Agency) Crime Investigation Rules, contravene the purpose of the provisions requiring a seizure report, and who must prove that the submission was voluntary, to what standard, and what follows if it was not?
Holding
No, it does not. The Supreme Court held that the provisions, including Article 106, Article 218 and Article 219 of the Criminal Procedure Act, Article 62 and Article 109 of the Criminal Procedure Rules and Article 119 of the former Crime Investigation Rules, exist so that the circumstances of a seizure are recorded and its lawfulness can be reviewed and controlled afterwards, and that substituting a note in the suspect's statement leaves that function unchanged, so that substitution alone does not make the seizure unlawful. Where an item is seized after submission, the prosecution must prove that the submission was voluntary to the standard of excluding reasonable doubt, and where it cannot be regarded as voluntarily submitted, the seized item has no evidentiary value.
Points at issue, verbatim
임의로 제출된 물건을 압수하는 경우, 제출에 임의성이 있다는 점에 관한 증명책임 소재(=검사)와 증명 정도(=합리적 의심을 배제할 수 있을 정도) 및 임의로 제출된 것이라고 볼 수 없는 경우 압수물의 증거능력 유무(소극)
Unofficial English translation
Where an article submitted voluntarily is seized, who bears the burden of proof as to whether the submission was voluntary (= the prosecutor), the degree of proof required (= to the extent that reasonable doubt is excluded), and whether the seized article is admissible as evidence where the article cannot be regarded as having been submitted voluntarily (negative)
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 무죄 부분을 파기하고, 이 부분 사건을 의정부지방법원에 환송한다.
Unofficial English translation
The judgment of the court below with respect to the not guilty part is reversed, and the case as to this part is remanded to the Uijeongbu District Court.
Form of the test
Circumstances weighed Stated in the decision
피고인이 수사기관에서 이 사건 휴대전화를 제출한 구체적인 경위, 검사가 제출한 압수증명, 임의제출서, 전자정보 확인서 등의 작성 경위, 피고인의 공판정에서의 태도 등을 고려하여 이 사건 휴대전화 제출의 임의성 여부를 보다 면밀히 살펴보았어야 한다.
Unofficial English translation
A closer examination should have been made of the voluntariness of the submission of the cellular phone in this case, in consideration of the specific circumstances under which the defendant submitted the cellular phone in this case to the investigative authorities, the circumstances under which the prosecutor submitted the seizure certification, the written statement of voluntary submission, and the certificate of confirmation of electronic information, and the defendant's attitude at trial.
Factors
- 사법경찰관이 임의제출된 증거물을 압수한 경우 압수경위 등을 구체적으로 기재한 압수조서를 작성하도록 한 형사소송법 등 관련 규정의 취지
- 구 (경찰청) 범죄수사규칙 제119조 제3항에 따라 피의자신문조서 등에 압수의 취지를 기재하여 압수조서를 갈음할 수 있도록 한 것이 이러한 관련 규정의 취지에 반하는지 여부(소극)
- 임의로 제출된 물건을 압수하는 경우, 제출에 임의성이 있다는 점에 관한 증명책임 소재(=검사)와 증명 정도(=합리적 의심을 배제할 수 있을 정도)
- 임의로 제출된 것이라고 볼 수 없는 경우 압수물의 증거능력 유무(소극)
Unofficial English translation
• The purpose of the Criminal Procedure Act and other relevant provisions requiring that, where a judicial police officer seizes evidentiary articles submitted voluntarily, a seizure report be prepared specifically stating the circumstances of the seizure, etc.
• Whether it is contrary to the purpose of such relevant provisions to allow a seizure report to be substituted by stating the grounds for seizure in the written records of the interrogation of a suspect, etc. in accordance with Article 119 (3) of the former (National Police Agency) Rules on Criminal Investigation (negative)
• Where an article submitted voluntarily is seized, who bears the burden of proof as to whether the submission was voluntary (= the prosecutor), and the degree of proof required (= to the extent that reasonable doubt is excluded)
• Where the article cannot be regarded as having been submitted voluntarily, whether the seized article is admissible as evidence (negative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2016. 3. 10. 선고 2013도11233 판결(공2016상, 587)
Unofficial English translation
Supreme Court Decision 2013Do11233 pronounced March 10, 2016 (Gong 2016 Sang, 587)
Decisions referred to
[2] 대법원 2016. 3. 10. 선고 2013도11233 판결(공2016상, 587)
Burden of proof
The prosecution Stated in the decision
그 제출에 임의성이 있다는 점에 관하여는 검사가 합리적 의심을 배제할 수 있을 정도로 증명하여야 하고
Unofficial English translation
the prosecutor must prove to the extent that reasonable doubt is excluded that the submission was voluntary,
Open question and revisit condition
How much detail of the circumstances of the seizure must a note in a suspect statement contain before it can replace a seizure report without impairing the review and control of lawfulness?
The remand judgment from the Uijeongbu District Court, once it weighs the circumstances of the handover and the voluntariness documents, will show how the burden is applied in practice. Any amendment to Article 62 or Article 109 of the Criminal Procedure Rules or to Article 119 of the Crime Investigation Rules, or a later decision on the substitute record, would require this entry to be read again.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Circumstances weighed” vs Independent “Elements stated”
The primary reading frames the proof standard as a holistic assessment of circumstances, while the independent reading frames it as a stated requirement of proof beyond reasonable doubt.
임의로 제출된 물건을 압수하는 경우, 제출에 임의성이 있다는 점에 관한 증명책임 소재(=검사)와 증명 정도(=합리적 의심을 배제할 수 있을 정도) 및 임의로 제출된 것이라고 볼 수 없는 경우 압수물의 증거능력 유무(소극)Axis 8 (Open question and revisit condition): Primary “How much detail of the circumstances of the seizure must a note in a suspect statement contain before it can replace a seizure report without impairing the review and control of lawfulness?” vs Independent “After closer examination on remand, will the prosecution establish voluntary submission of the phone beyond reasonable doubt?”
The primary reading asks how specific a seizure note must be to replace a seizure record, while the independent reading asks whether the prosecution can prove voluntariness on remand.
임의로 제출된 물건을 압수하는 경우, 제출에 임의성이 있다는 점에 관한 증명책임 소재(=검사)와 증명 정도(=합리적 의심을 배제할 수 있을 정도) 및 임의로 제출된 것이라고 볼 수 없는 경우 압수물의 증거능력 유무(소극)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 Uijeongbu District Court, in its judgment of 6 February 2020 (2019No2762), set aside the guilty judgment of the first-instance court and acquitted. It held that recording the seizure in the suspect's statement under Article 119(3) of the former (National Police Agency) Crime Investigation Rules, without writing a seizure report, was unlawful, so that the images extracted from the mobile telephone seized from the defendant lacked evidentiary value. It further found the voluntariness of the submission unproved, reasoning that the defendant had handed over the telephone in a state of constraint without adequate notice of the effect of voluntary submission.
Supreme Court standard: The Supreme Court held that the record-substitution permitted by the former Crime Investigation Rules serves the same review and control of the lawfulness of the seizure, so the court below erred in law in holding the seizure unlawful on that ground alone. On voluntariness it applied the settled rule that the prosecution must prove it beyond reasonable doubt, and found that the defendant had retained a defence counsel, admitted his offence from the start, answered questions while searching the telephone himself, signed a voluntary submission form and asked for its return, and that nothing in the record showed a state of constraint raising doubt. Since the court below did not weigh the circumstances of the handover, the making of the seizure certificate, the submission form and the electronic information confirmation, or the defendant's conduct in court, it failed to conduct the necessary examination; the Supreme Court reversed the part of the judgment of acquittal and remanded the case.
Distinguishing conditions
- A seizure whose circumstances were not recorded in any document, so that later review and control of its lawfulness is not possible, since the Court relied on the record's serving that function.
- A handover made while the person was so under strain that its voluntariness is open to doubt, which is the condition the Court found absent on this record.
- A case in which the prosecution does not discharge the burden of proving voluntariness beyond reasonable doubt, so that the seized item cannot be regarded as voluntarily submitted.
Record verification notes
Collect the seizure certificate, the voluntary submission form, the electronic information confirmation and the suspect statement itself, and set each against the circumstances in which the item was handed over. Then check whether the person retained counsel, answered while handling the item himself, and denied or admitted the submission at trial, since the Court relied on those facts. Finally, look through the record for anything showing constraint, because the Court found no such circumstance and held that the court below nevertheless concluded voluntariness was unproved without weighing the circumstances of the handover, the voluntariness documents and the conduct in court.
From the official text
Points at issue
[1] 사법경찰관이 임의제출된 증거물을 압수한 경우 압수경위 등을 구체적으로 기재한 압수조서를 작성하도록 한 형사소송법 등 관련 규정의 취지 / 구 (경찰청) 범죄수사규칙 제119조 제3항에 따라 피의자신문조서 등에 압수의 취지를 기재하여 압수조서를 갈음할 수 있도록 한 것이 이러한 관련 규정의 취지에 반하는지 여부(소극) [2] 임의로 제출된 물건을 압수하는 경우, 제출에 임의성이 있다는 점에 관한 증명책임 소재(=검사)와 증명 정도(=합리적 의심을 배제할 수 있을 정도) 및 임의로 제출된 것이라고 볼 수 없는 경우 압수물의 증거능력 유무(소극)
Unofficial English translation
[1] The purpose of the Criminal Procedure Act and other relevant provisions requiring that, where a judicial police officer seizes evidentiary articles submitted voluntarily, a seizure report be prepared specifically stating the circumstances of the seizure, etc. / Whether it is contrary to the purpose of such relevant provisions to allow a seizure report to be substituted by stating the grounds for seizure in the written records of the interrogation of a suspect, etc. in accordance with Article 119 (3) of the former (National Police Agency) Rules on Criminal Investigation (negative) [2] Where an article submitted voluntarily is seized, who bears the burden of proof as to whether the submission was voluntary (= the prosecutor), the degree of proof required (= to the extent that reasonable doubt is excluded), and whether the seized article is admissible as evidence where the article cannot be regarded as having been submitted voluntarily (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
원심판결 중 무죄 부분을 파기하고, 이 부분 사건을 의정부지방법원에 환송한다.
Unofficial English translation
The judgment of the court below with respect to the not guilty part is reversed, and the case as to this part is remanded to the Uijeongbu District Court.
Provisions referred to
[1] 형사소송법 제106조, 제218조, 제219조, 형사소송규칙 제62조, 제109조 [2] 형사소송법 제218조, 제307조, 제308조
Read 2026-10-25 · Cross-read 2026-10-25. 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.
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