형사소송법 제218조의 유류물 또는 임의제출물의 압수에 대한 소고

Abstract

An investigative agency’s search and confiscation are legal disposition that require warrants in principle (Article 215 of the Criminal Prosecution Act). However, search and confiscations that are not based on warrants are permitted as an exception in consideration of urgency, etc. (Articles 216 to 218). Among which, any confiscation of lost articles or voluntary submissions in Article 218 do not require a pre-warrant nor a post-warrant, and thus, are used the most frequently in practice. However, a strict determination must be made because of the possibility that a manipulation of the law may occur regarding the warrant. First, with respect to the confiscation of lost articles in Article 218, there are views that consider impression evidence, such as finger prints, and biological samples, such as blood stains, are applicable for confiscation of lost articles. However, it is determined that it would suffice for them to be understood as a series of authentication for investigation, which is considered free investigation. Nonetheless, confiscation without warrants may be made if abandoned waste is transferred to a public sector, such as a depository, and ownership is abandoned, whereas if an individual submits lost articles abandoned by a criminal to an investigative agency, it should be confiscated by being issued a pre-warrant or a voluntary submission from the owner, etc. Meanwhile, voluntary submissions are sufficient as long as they are submitted by a party with the right to do so (owner, holder or storer), and thus, there is no need for the consent of the owner or a suitable right, and in the event of a holder or storer, the court has held that there must be no ‘special circumstances, such as the invasion of the owner’s privacy or other personal benefit.’ Furthermore, even if there is reason to believe that there is legitimate authority in appearance, it would be difficult to always acknowledge the right of voluntary submission unless post-remedying acknowledges it. Any other determination of the voluntariness of a voluntary submission must be made by integrated consideration based on the specific situations, even at the request of a voluntary submission by an investigative agency or when the rejection of a voluntary submission is not issued by the investigative agency. Furthermore, although the confiscation of voluntary submissions is permitted at the site of arrest or the scene of the crime, strict determination must be made due to the risk of evading the warrant. Furthermore, the confiscation of voluntary submissions has the same effect as the confiscation based on a warrant. In this regard, it would be difficult for the voluntariness to be acknowledged if a voluntary submission is made immediately after an illegal confiscation. If so, in the event that the illegally confiscated article is returned and immediately confiscated thereafter as voluntary submission, the validity of evidence may be acknowledged by assessing that the causal relationship between the initial violation of the procedure of confiscating the evidence and the final collection of evidence, however, if substantially forceful confiscation has been made in the process, the validity of evidence may not be acknowledged.