Open Decision Ledger · Criminal & investigative procedure
Whether the right to participate of the holder of the power of management and disposition over the original is recognized for electronic information replicated onto a third party's medium and voluntarily submitted
Translated from the Korean original. Read the Korean
Supreme Court, Oct. 16, 2025, 2025Do1549 (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·반포등)·성폭력범죄의처벌등에관한특례법위반(카메라등이용촬영)·성폭력범죄의처벌등에관한특례법위반(카메라등이용촬영물소지등)
Official text on the National Law Information Center
Question
Where electronic information has been identically replicated onto an information storage medium owned and managed by a third party and voluntarily submitted, must the holder of the power of management and disposition over the original electronic information be treated as the person substantially subject to seizure and afforded the right to participate as well?
Holding
In principle, no. The Supreme Court held that, absent special circumstances making it manifestly unfair to afford an opportunity to participate only to the person who voluntarily submits replicated electronic information, such as where a replica is submitted in lieu of the original for the purpose of excluding participation, the holder of the power of management and disposition over the original cannot be regarded as the person substantially subject to seizure on the basis of the identity of the information alone.
Points at issue, verbatim
복제 전자정보 임의제출자 외에 원본 전자정보 관리처분권자를 실질적 피압수자로 평가하여 그에게 참여권을 인정하여야 하는지 여부(원칙적 소극)
Unofficial English translation
whether the person with the right of disposition or management over the original electronic information, in addition to the voluntary submitter of the duplicated electronic information, must be evaluated as the person actually seized and accorded the right to participate (in principle, negative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울남부지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Southern District Court.
Form of the test
Existing test applied Stated in the decision
앞서 본 사실관계를 위 법리에 비추어 살펴보면
Unofficial English translation
examining the facts as found above in light of the foregoing legal principle,
Factors
- 전자정보가 제3자 소유·관리의 정보저장매체에 그 내용이 동일하게 복제되어 임의제출되는 경우
- 복제 전자정보 임의제출자 외에 원본 전자정보 관리처분권자
- 실질적 피압수자로 평가하여 그에게 참여권을 인정하여야 하는지 여부
Unofficial English translation
• where electronic information is identically duplicated on an information storage medium owned or managed by a third party and voluntarily submitted
• the person with the right of disposition or management over the original electronic information, in addition to the voluntary submitter of the duplicated electronic information
• whether such person must be evaluated as the person actually seized and accorded the right to participate
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2024. 12. 24. 선고 2023도3626 판결
Unofficial English translation
Supreme Court Decision 2023Do3626 decided December 24, 2024
Decisions referred to
대법원 2024. 12. 24. 선고 2023도3626 판결(공2025상, 434)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
By what circumstances is it determined whether voluntary submission of the original electronic information was sufficiently possible and whether there was a purpose of excluding participation, and who must prove those circumstances?
We will re-examine this reading if the Supreme Court's precedent on the holder of the right to participate in the voluntary submission of replicated electronic information changes, or if the provisions on the right to participate in Article 121 and Article 219 of the Criminal Procedure Act are amended.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
Compared with an independent reading of the original text alone, without seeing the first reading, by an AI from another family (GPT-6 Astra), 6 of the 8 axes agreed, and readings diverged on Axis 4 (Form of the test) and Axis 8 (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Circumstances weighed”
One may emphasize the application to the facts in the general denial stated in the Holdings and in the disposition of reversal and remand, or emphasize the weighing of circumstances for the determination of the exception, but the text provided does not present specific factors for consideration.
원본 전자정보 관리처분권자를 실질적 피압수자로 평가하여 그에게 참여권을 인정하여야 하는지 여부(원칙적 소극)Axis 8 (Open question and revisit condition): Primary “By what circumstances is it determined whether voluntary submission of the original electronic information was sufficiently possible and whether there was a purpose of excluding participation, and who must prove those circumstances?” vs Independent “Even where no purpose of excluding the participation of the holder of the power of management and disposition over the original is established, what circumstances would make it manifestly unfair to afford an opportunity to participate only to the person who submitted it?”
The first reading asks about the possibility of submitting the original, the determination of the purpose of excluding participation, and the party bearing the burden of proof, whereas the independent reading asks about the circumstances that would warrant recognizing an exception even where no purpose of exclusion is established.
복제 전자정보 임의제출자 외에 원본 전자정보 관리처분권자를 실질적 피압수자로 평가하여 그에게 참여권을 인정하여야 하는지 여부(원칙적 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 court below found that, with respect to all of the PC and USB voluntarily submitted by Non-indicted 4 and the electronic information stored therein, the defendant was the person substantially subject to seizure, that the right to participate was not guaranteed, and that confirming the intention to participate at the time of the suspect's interrogation was no more than a subsequent circumstance; it accordingly treated the evidence as illegally obtained evidence. As a result, the secondary evidence was also excluded, and, on the ground that there was no corroborating evidence for the confession, the court below found the charged facts, except the part constituting guilt, not guilty.
Supreme Court standard: The Supreme Court agreed with the part of the judgment that denied admissibility of the evidence of the PC and the electronic information stored therein. However, the USB belonged to the ownership and management of Non-indicted 4, and no special circumstance of submitting a replica for the purpose of excluding participation was apparent; accordingly, it was sufficient that an opportunity to participate was given to the person who submitted it, Non-indicted 4, and that an inventory of seizure was delivered to him/her. In this regard, the Supreme Court held that the judgment of the court below contained an error arising from a misunderstanding of the legal principle on the right to participate in the procedure for search and seizure of replicated electronic information, and, because the part found not guilty and the part found guilty stood in a relation of joinder of offenses, it reversed the entire judgment of the court below.
Distinguishing conditions
- A case in which a replica was submitted solely for the purpose of excluding the participation of the holder of the power of management and disposition over the original, although voluntary submission of the original electronic information was sufficiently possible
- A case in which not a replica but the original information storage medium itself, over which the defendant held the power of management and disposition, was submitted (in this case, admissibility of the evidence of the PC was denied)
- A case in which the medium storing the replicated electronic information cannot readily be regarded as owned or managed by the person who submitted it
Record verification notes
Before asserting the same conclusion, check the circumstances under which the replicated electronic information was created and the state of control and management over it, the possibility of voluntary submission of the original or of search and seizure, and whether the person who submitted it was in fact given an opportunity to participate and an inventory of seizure specifying the file list.
From the official text
Points at issue
전자정보가 제3자 소유·관리의 정보저장매체에 그 내용이 동일하게 복제되어 임의제출되는 경우, 복제 전자정보 임의제출자 외에 원본 전자정보 관리처분권자를 실질적 피압수자로 평가하여 그에게 참여권을 인정하여야 하는지 여부(원칙적 소극)
Unofficial English translation
Where electronic information is identically duplicated on an information storage medium owned or managed by a third party and voluntarily submitted, whether the person with the right of disposition or management over the original electronic information, in addition to the voluntary submitter of the duplicated electronic information, must be evaluated as the person actually seized and accorded the right to participate (in principle, 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
원심판결을 파기하고, 사건을 서울남부지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Southern District Court.
Provisions referred to
헌법 제12조 제1항, 형사소송법 제121조, 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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