임의제출물의 영치와 위법수집증거 배제법칙 - 대법원ﾠ2016. 3. 10. 선고 2013도11233ﾠ판결 -

Abstract

Article 218(Seizure without Warrant) of the Korean Code of Criminal Procedure provides that “a prosecutor or senior judicial police officer may seize an article which has been discarded by a criminal suspect or any other person, or those which have been voluntarily produced by their owner, possessor, or custodian without a warrant.” The present paper reviews a recent Supreme Court of Korea decision(2013do11233) of 2016 regarding an unlawful seizure and a possibility of breaking the connection between an initial illegal seizure of an item(USB) and a following voluntary production by a owner, possessor, or custodian after the investigating agency returns the item. Where the subsequent production of the item is voluntary, then the connection between the primary violation and the item produced may be regarded as broken or attenuated(an exception to the fruit of the poisonous tree doctrine). However, the subsequent production could be caused by threatening or actually coerced by the law enforcement agencies. Therefore the 2016 decision required the prosecution to prove beyond a reasonable doubt that the production was conducted voluntarily by the possessor or custodian. Otherwise the item shall not be admissible. In the 2016 decision, the Supreme Court found that the prosecution failed to prove the voluntariness of the production, so the Court regarded the submission of the item as illegal and inadmissible to the trial. This decision is thought to be the first judgment that denies the voluntariness of a production of Art. 218. In addition, the Court put the standard of the proof beyond a reasonable doubt concerning the voluntary character of the production to attenuate or break the connection of the primary illegal seizure. The holding of the decision seems to be appropriate to prevent the possible threat or coercion of the prosecution or the police to the owner, possessor, or custodian of an evidence. In addition, it would be important to differentiate a standard of proof(proof beyond a reasonable doubt, probability proof, etc) and a method of proof.