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【Main Issues and Holdings】
[1] Whether the specific provisions regarding search and seizure procedures stipulated in the Criminal Procedure Act, including provisions regarding the right of participation, should be construed and implemented in line with the constitutional principles of the due process of law and the principle of warrant (affirmative)
[2] Gist of Articles 123(2) and (3) and 219 of the Criminal Procedure Act which obligated the owner, etc. or the neighbor, etc. to participate in the execution of a search and seizure warrant at the dwelling, etc.
Whether the owner, etc. or the neighbor, etc. who participate in the execution of a search and seizure warrant pursuant to Articles 123(2) and (3) and 219 of the Criminal Procedure Act should have the capacity to participate (affirmative)
[3] In a case where the execution of a search and seizure warrant for the dwelling, etc. under Article 123(2) of the Criminal Procedure Act is done without participation of the owner, etc. or the neighbor, etc., the lawfulness of such execution of a search and seizure warrant (negative in principle), and whether this likewise applies to a case where, even though the owner, etc. or the neighbor, etc. participated, the participant either lacked or was deficient in the capacity to participate (affirmative)
[4] In a case where the owner, etc. or the neighbor, etc. participating in the execution of a search and seizure warrant pursuant to Article 123(2) and (3) of the Criminal Procedure Act has disability in communication or expression of opinion, whether the investigative agency should take lawful measures in alignment with the essence of Article 26(6) of the Act on the Prohibition of Discrimination Against Persons with Disabilities and Remedy Against Infringement of Their Rights for participants with such disability (affirmative)
If the accused does not have the capacity to participate when a search and seizure warrant is executed at the dwelling, etc. where the said accused is the owner, etc. thereof, whether the investigative agency should let the neighbor, etc. having the capacity participate (affirmative), and the lawfulness of a search and seizure where only the accused having no capacity participated (negative in principle)
[5] Standards for determining whether requirements for the lawfulness of search and seizure procedures are satisfied in terms of the participants of the search and seizure procedure pursuant to Articles 123(2) and (3) and 219 of the Criminal Procedure Act
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