Open Decision Ledger · Criminal & investigative procedure
Re-examining an arrest warrant at execution and the effect of an unlawful arrest
Supreme Court, Apr. 2, 2026, 2022Do2402 (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: 성매매알선등행위의처벌에관한법률위반(성매매알선등)
Official text on the National Law Information Center
Question
Where an arrest warrant was issued before any summons was sent, must the executing investigator re-examine, on the situation at the time of execution, whether the ground and the necessity for arrest under Article 200-2(1) of the Criminal Procedure Act are met, are statements made during the detention following an unlawful arrest inadmissible, and does the mere illegality of a custody disposition form an independent ground of appeal?
Holding
From the application for the warrant through its issuance to its execution, the ground for arrest and its necessity under Article 200-2(1) of the Criminal Procedure Act must be established, and the investigator who executes the warrant must examine that carefully on the situation at the time of execution. Where that investigator's assessment is manifestly contrary to common experience, the arrest is unlawful, and the interrogation record and written statement made during the detention following it cannot be used as evidence of guilt unless there are special circumstances. The mere illegality of a custody disposition is not an independent ground of appeal unless the rights of defence or counsel were substantially infringed and the propriety of the judgment cannot be sustained.
Points at issue, verbatim
체포영장의 집행 당시 상황으로 보아 영장에 의한 체포의 사유와 그 필요성이 충족되었는지에 관한 수사기관의 판단이 경험칙에 비추어 현저히 합리성을 잃은 경우, 위법한 체포에 해당하는지 여부(적극) 및 위법한 체포에 의한 유치 중 작성된 피의자신문조서 등 진술증거는 위법수집증거에 해당하는지 여부(적극)
Unofficial English translation
Whether, where the judgment of the investigative agency as to whether the grounds and necessity for arrest by a warrant were satisfied in light of the circumstances at the time of the execution of the arrest warrant has manifestly lost reasonableness in view of the rules of experience, the arrest constitutes an unlawful arrest (affirmative), and whether testimonial evidence, such as written statements of the suspect taken during detention following an unlawful arrest, falls within illegally obtained evidence (affirmative)
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Elements stated Stated in the decision
그렇지만 이에 국한되는 것이 아니라, 범죄의 성질이나 범죄사실의 특성, 피의자의 지위·역할 등에 비추어, 피의자가 출석요구를 받게 되면 장기적 또는 단기적으로 피신하는 등 출석요구에 응하지 아니함으로써 수사진행에 장애를 줄 우려까지도 포함한다.
Unofficial English translation
Yet this is not limited to that; in light of the nature of the crime, the characteristics of the facts of the crime, the suspect's status and role, etc., it also includes the concern that, if the suspect receives a request to appear, the suspect would abscond for the long term or the short term, etc., and thereby hinder the progress of the investigation by failing to comply with the request to appear.
Factors
- ‘수사기관의 출석요구에 불응할 우려가 있는 경우’의 의미
- 체포영장의 청구에서부터 발부·집행에 이르는 절차 전반에 걸쳐 형사소송법 제200조의2 제1항에서 정한 영장에 의한 체포의 사유와 그 필요성이 인정되어야 하는지 여부(적극)
- 체포영장의 집행 당시 상황으로 보아 영장에 의한 체포의 사유와 그 필요성이 충족되었는지에 관한 수사기관의 판단이 경험칙에 비추어 현저히 합리성을 잃은 경우
- 위법한 체포에 의한 유치 중 작성된 피의자신문조서 등 진술증거는 위법수집증거에 해당하는지 여부(적극)
- 구금 등의 처분이 위법하다는 것만으로 독립한 상고이유가 되는지 여부(한정 소극)
Unofficial English translation
• The meaning of "where there is a concern that the person may refuse to comply with a request by an investigative agency to appear"
• Whether, throughout the entire procedure from the request for an arrest warrant to its issuance and execution, the grounds and necessity for arrest by a warrant as provided in Article 200-2, paragraph (1) of the Criminal Procedure Act must be recognized (affirmative)
• Where the judgment of the investigative agency as to whether the grounds and necessity for arrest by a warrant were satisfied in light of the circumstances at the time of the execution of the arrest warrant has manifestly lost reasonableness in view of the rules of experience
• Whether testimonial evidence, such as written statements of the suspect taken during detention following an unlawful arrest, falls within illegally obtained evidence (affirmative)
• Whether the mere unlawfulness of the disposition such as detention constitutes an independent ground for final appeal (limited negative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2002. 6. 11. 선고 2000도5701 판결(공2002하, 1720), 대법원 2006. 9. 8. 선고 2006도148 판결(공2006하, 1699), 대법원 2008. 3. 27. 선고 2007도11400 판결
Unofficial English translation
Supreme Court Decision 2000Do5701 decided June 11, 2002 (Gong 2002 Ha, 1720), Supreme Court Decision 2006Do148 decided September 8, 2006 (Gong 2006 Ha, 1699), Supreme Court Decision 2007Do11400 decided March 27, 2008
Decisions referred to
[2] 대법원 2002. 6. 11. 선고 2000도5701 판결(공2002하, 1720), 대법원 2006. 9. 8. 선고 2006도148 판결(공2006하, 1699), 대법원 2008. 3. 27. 선고 2007도11400 판결 / [3] 대법원 2002. 7. 12. 선고 2002도1869 판결, 대법원 2021. 4. 29. 선고 2020도16438 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the executing investigator finds at the time of arrest that the ground for arrest no longer exists, must the warrant simply be left unexecuted with notice under Article 204 of the Criminal Procedure Act, or may a fresh application be made on the changed circumstances?
A later decision on what amounts to special circumstances permitting the use of statements made during detention following an unlawful arrest, or an amendment to Article 200-2(1) of the Criminal Procedure Act or to Articles 96-2 and 96-19 of the Rules of Criminal Procedure, would require this entry to be read again. So would a judgment in which the executing officers' assessment at execution is held to remain within the range of reasonable discretion.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Where the executing investigator finds at the time of arrest that the ground for arrest no longer exists, must the warrant simply be left unexecuted with notice under Article 204 of the Criminal Procedure Act, or may a fresh application be made on the changed circumstances?” vs Independent “What special circumstances could permit admission of statements obtained during detention resulting from unlawful execution of an arrest warrant?”
The primary asks whether the investigator must leave the warrant unexecuted or may reapply, while the independent asks what special circumstances permit using statements from unlawful detention.
체포영장의 집행 당시 상황으로 보아 영장에 의한 체포의 사유와 그 필요성이 충족되었는지에 관한 수사기관의 판단이 경험칙에 비추어 현저히 합리성을 잃은 경우, 위법한 체포에 해당하는지 여부(적극) 및 위법한 체포에 의한 유치 중 작성된 피의자신문조서 등 진술증거는 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 Uijeongbu District Court, in its judgment of 27 January 2022 (2021No1796), left standing the first-instance judgment convicting the defendant of running a prostitution business in four officetel rooms from mid-August 2020, on the reasons it gave. It did not accept his application to reopen the closed debate.
Supreme Court standard: The Supreme Court held the warrant request and issuance lawful, because the crime was secretive in its method, the record indicated that the defendant had been identified as the operator of the business and had held a substantial role in it, and he had two prior punishments for the same offence since 2017, so the fear that he would not answer a summons was properly found. It held the arrest unlawful: the first contact about the charged offence came after issuance, non-attendance was not among the reasons written on the warrant, the defendant had promised to attend about two weeks after the first summons and did so exactly on time with no sign of flight or destroying evidence, and the arrest report gave no reason for the arrest or for the view that there was a risk of destroying evidence or flight. The Court then held that this illegality was no independent ground of appeal, because the defendant had been told of the offence, the right to counsel and the right to refuse to answer, no breach of due process appeared, and the remaining evidence apart from his statements sufficed, so there was no error in the judgment below and the Justices unanimously dismissed the appeal.
Distinguishing conditions
- A case in which the circumstances at execution show that the suspect will not answer a summons, so that the ground and its necessity are met.
- A case in which special circumstances permit the statements made during the detention following the unlawful arrest to be used as evidence.
- A custody disposition whose illegality substantially infringes the rights of defence or counsel and makes the propriety of the judgment unsustainable.
Record verification notes
Set the timeline against the file: the application and issue of the warrant, here 22 and 25 January 2021, the first contact about the charged offence, here 4 February 2021, and the arrest on 19 February 2021. Read what the warrant's reason field and the arrest report's circumstances of arrest record and omit, since the Court relied on both. Then gather the evidence other than the defendant's statements, because that alone carried the conviction here, and remember that a claim under Article 417 of the Criminal Procedure Act to cancel or change the disposition remains open.
From the official text
Points at issue
[1] 체포영장에 의한 체포의 사유 중 ‘수사기관의 출석요구에 불응할 우려가 있는 경우’의 의미 [2] 체포영장의 청구에서부터 발부·집행에 이르는 절차 전반에 걸쳐 형사소송법 제200조의2 제1항에서 정한 영장에 의한 체포의 사유와 그 필요성이 인정되어야 하는지 여부(적극) / 수사기관의 청구에 따라 체포영장이 적법하게 발부된 경우라도, 그 집행을 담당하는 수사기관은 체포영장 집행 당시의 상황을 기초로 영장에 의한 체포의 사유와 그 필요성이 충족되었는지를 면밀히 살펴보아야 하는지 여부(적극) / 체포영장의 집행 당시 상황으로 보아 영장에 의한 체포의 사유와 그 필요성이 충족되었는지에 관한 수사기관의 판단이 경험칙에 비추어 현저히 합리성을 잃은 경우, 위법한 체포에 해당하는지 여부(적극) 및 위법한 체포에 의한 유치 중 작성된 피의자신문조서 등 진술증거는 위법수집증거에 해당하는지 여부(적극) [3] 판결 내용 자체가 아닌 피고인의 신병확보를 위한 구금 등의 처분에 관한 절차가 법령에 위반된 경우, 구금 등의 처분이 위법하다는 것만으로 독립한 상고이유가 되는지 여부(한정 소극)
Unofficial English translation
[1] The meaning of "where there is a concern that the person may refuse to comply with a request by an investigative agency to appear," which is one of the grounds for arrest under an arrest warrant [2] Whether, throughout the entire procedure from the request for an arrest warrant to its issuance and execution, the grounds and necessity for arrest by a warrant as provided in Article 200-2, paragraph (1) of the Criminal Procedure Act must be recognized (affirmative) / Even where an arrest warrant has been lawfully issued upon the request of an investigative agency, whether the investigative agency responsible for its execution must carefully examine whether the grounds and necessity for arrest by a warrant are satisfied, based on the circumstances at the time of the execution of the arrest warrant (affirmative) / Whether, where the judgment of the investigative agency as to whether the grounds and necessity for arrest by a warrant were satisfied in light of the circumstances at the time of the execution of the arrest warrant has manifestly lost reasonableness in view of the rules of experience, the arrest constitutes an unlawful arrest (affirmative), and whether testimonial evidence, such as written statements of the suspect taken during detention following an unlawful arrest, falls within illegally obtained evidence (affirmative) [3] Where the procedure concerning a disposition such as detention for the purpose of securing the defendant's person, which is not the content of the judgment itself, violates statutes or regulations, whether the mere unlawfulness of the disposition such as detention constitutes an independent ground for final appeal (limited 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 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
[1] 형사소송법 제200조의2 제1항 / [2] 헌법 제12조 제1항, 제3항, 형사소송법 제81조 제1항, 제199조 제1항, 제200조, 제200조의2 제1항, 제2항, 제200조의6, 제204조, 제308조의2, 형사소송규칙 제96조의2, 제96조의19 제1항 제1호, 제3항 / [3] 형사소송법 제383조 제1호, 제417조
Read 2026-10-24 · Cross-read 2026-10-24. 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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