임의제출과 유사한 사례에서의 위법수집증거 판단기준 검토 - 대법원 2014. 2. 27. 선고 2013도12155 판결 -

Abstract

The recent Supreme Court sentence was judged to be legitimate as the confiscation of items arbitrarily submitted by the arrestee, even in cases where the arrest of a current criminal or an emergency arrest, etc., or the superior situation of the investigative agency were premised. And, if the submitted object is a mobile phone, the photo printed from the mobile phone is regarded as evidence obtained through a legal procedure. This judgment was regarded as evidence of illegal collection, as the electronic information obtained through the seizure and search warrant was not related to the allegations in the warrant. Nevertheless, for new evidence acquired using the electronic information as a clue, different judgments were made depending on the situation in which the electronic information was presented. By differentiating the judgment of the illegality of the secondary evidence obtained by presenting the printout and the secondary evidence obtained without presenting it, the evidence ability was recognized only for the latter secondary evidence. However, after the seizure of the storage media, if the confiscated person organizes the restored data and submits it to an investigative agency, and if randomness is recognized in such a process, it should be considered similar to the effect of the seizure as a voluntary submission. In addition, even if the evidence is collected regardless of the allegations stated in the warrant, for the results of the relationship investigation based on the evidence and the materials to be submitted voluntarily, It is the realization of criminal justice to see the causal link between the violation of legal proceedings and the collection of secondary evidence diluted or broken.