All
| TITLE | Supreme Court en banc Decision 2016Do348 Decided November 18, 2021 【QuasiIndecent Act by Compulsion; Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Taking Photographs or Videos by Using Cameras)】 [full Text] |
|---|---|
| Summary | |
| 【Main Issues and Holdings】 [1] A case where an investigative agency may seize a data storage medium itself or its duplicate after receiving voluntary submission thereof as an exception when the investigative agency receives voluntary submission of the data storage medium including electronic information in relation to suspicion of a specific crime and seizes electronic information stored therein [2] Where the subject and scope of electronic information to be seized in accordance with the intention of a person who voluntarily submits a data storage medium are unclear or cannot be determined when an investigative agency seizes the data storage medium and electronic information stored therein in the manner of voluntary submission, whether only the electronic information that is relevant to the facts of suspicion of the crime, which provide the motive for seizure subsequent to voluntary submission, and has a minimum value in proving such suspicion is subject to seizure (affirmative) and, in such a case, the scope within which the relevance to the facts of suspicion of a crime may be recognized In the case of a crime of illegally taking photographs or videos by using a mobile phone, whether a concrete and separate link between indirect evidence or circumstantial evidence, which can be found in the same type of electronic information stored in the mobile phone, and the facts of suspicion of a crime may be recognized (affirmative) Where a third person such as a victim, etc., other than a criminal suspect, voluntarily submits a data storage medium owned and managed by a criminal suspect, whether more restrictive interpretation should be made by viewing that only the electronic information that has a concrete and separate connection with the facts of suspicion of the crime, which provide the motive for such voluntary submission, should be subject to seizure (affirmative) [3] Where an investigative agency, to which a data storage medium, in which electronic information, subject to seizure and not subject thereto, is intermingled, or its duplicate was voluntarily submitted, does not take any appropriate measure to prevent arbitrary duplication, etc. of electronic information irrelevant to the facts of suspicion in a series of process of exploring, duplicating, and printing out the data storage medium, etc. after transferring the data storage medium, etc. to an office, etc. of the investigative agency, whether such seizure and search may be deemed legal (negative in principle) and, in such a case, whether it makes no difference even if only electronic information relevant to the facts of suspicion of a crime in the data storage medium or its duplicate was duplicated and printed out (affirmative) Where a third person such as a victim, etc. voluntarily submits a data storage medium falling under the ownership and management of a criminal suspect without a warrant of seizure and search, whether any appropriate measure to guarantee the procedural right of the criminal suspect such as ensuring the criminal suspect’s right to participate and delivering an inventory of the seized electronic information should be taken (affirmative) [4] Where an investigative agency seizes and searches electronic information beyond electronic information subject to seizure in the voluntarily submitted data storage medium without a warrant of seizure and search, whether evidence obtained by such seizure and search corresponds to evidence illegally obtained (affirmative) and where a warrant was issued from the court after such act or the criminal defendant or his/her defense counsel agreed in using the obtained evidence as evidence, whether its illegality may be remedied (negative) [5] In a case where, with respect to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (taking photographs or videos by using a camera, etc.) (“the crime committed in 2014”) that the criminal defendant committed against Victim A on Dec. 11, 2014, Victim A, who immediately reported the suspicious facts to the police, voluntarily submitted two mobile phones as evidential materials of such crime, stating to the effect that photographs or videos taken by the criminal defendant were stored in the two mobile phones owned by the criminal defendant that Victim A brought out of the criminal defendant’s house, and the police found another violation of the same Act (taking photographs or videos by using a camera, etc.) that the criminal defendant committed against Victims B and C around December 2013 (“the crime committed in 2013”) in another mobile phone, which was not the one used to take photographs and videos of Victim A, in the process of examining electronic information stored therein after seizing them and submitted a CD, onto which photographs, videos, etc. thereof were duplicated without a warrant, as evidence, the case holding that the conclusion of the lower court, which acquitted the criminal defendant of the crime committed in 2013, is just | |
