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【Main Issues and Holdings】
[1] Whether evidence collected without regard to the procedures prescribed in the Constitution of the Republic of Korea and the Criminal Procedure Act and secondary evidence derived therefrom can be used as incriminating evidence (negative in principle)
Exceptional cases where the above evidence can be used as incriminating evidence
Elements to be considered when determining whether specific cases constitute the above exceptional cases, and where the burden of proof lies in the existence of special circumstances (held: prosecutor)
In a case where primary evidence unlawfully obtained by the investigative agency became a crucial piece of evidence to begin an investigation or is practically the only or critical evidence, with a significant degree of illegality, and the defendant was either presented with primary evidence at the investigative agency or interrogated based on the primary evidence, whether the Defendant’s in-court evidence, which is secondary evidence, can be used as incriminating evidence (negative in principle), and exceptional cases where the Defendant’s in-court statement can be used as incriminating evidence and where the burden of proof of the existence of such exceptional cases lies in (held: prosecutor)
[2] In a case where: (a) regarding a facts of charge that the Defendant A offered bribes to Defendant B, a civil servant, and Defendants C and D, who are deemed as civil servants, and Defendants B, C, and D received bribes from Defendant A, a special judicial police officer affiliated with the Ministry of Environment, executed the first seizure, search, and inspection warrant, which was issued based on the alleged violations of the Environmental Testing and Inspection Act, against Defendant A, etc., seized Defendant A’s mobile phone, and conducted a digital forensic investigation of electronic information stored in the phone, in a pursuit of electronic information related to alleged facts of charge recorded in the warrant; (b) in doing so, the police officer discovered a recorded file of phone conversations between the said Defendants with respect to the charges of Defendant A’s offering of a bribe and Defendants B and C’s acceptance of a bribe (hereinafter “unrelated electronic information”) and kept in his possession until one year and five months later from the date of execution of the above warrant, when he requested an investigation thereof; (c) the prosecutor in charge commenced an investigation of Defendants A, B, and C, etc. based on the unrelated electronic information, and received the second seizure, search, and inspection warrant on the unrelated electronic information based on the provision and acceptance of bribes with which Defendants A, B, and C, etc. were charged as the facts of crime; (c) the prosecutor in charge, etc. specified the charges against the Defendant involving the date and place of the crime and the amount of money tendered and accepted as a bribe, based on the unrelated electronic information and the investigation report containing the details and description of the case, and filed an indictment against the Defendants after summoning the relevant individuals, including the Defendants and the intervenor, from whom statements were obtained; and (d) the admissibility of the unrelated electronic information collected by the investigative agency, protocols containing statements and protocols of suspect interrogation drafted based on such unrelated electronic information, and each in-court statement of the Defendants and the witnesses obtained based thereon was at dispute, the case holding that the lower judgment erred by misapprehending the legal doctrine, etc., on the grounds that each in-court statement provided by the Defendants and the witnesses is secondary evidence based on the unlawfully obtained unrelated electronic information, the admissibility of which should be denied unless the prosecutor presents proof of special circumstances that the causal relationship between procedural violations and secondary evidence has been either diluted or severed
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