“Other crime evidence in the suspect’s cell phone… The ability of evidence is recognized only after going through a separate seizure procedure.”


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Supreme Court view. material photo

The Supreme Court ruled that even if an investigative agency found a separate crime through the suspect’s cell phone, which was arbitrarily submitted to a third party, it could not be used as evidence unless a separate search and seizure warrant was issued or the suspect’s right to participate was not guaranteed. On the 18th, the Supreme Court’s all-inclusive body (President Kim Myung-soo, Chief Justice of the Supreme Court) announced on the 18th that it had confirmed the original trial that partially acquitted Mr. A was a university professor and in December 2014, drinking with B at his home in Heungdeok-gu, Cheongju-si, North Chungcheong Province, illegally filmed the body of Mr. B, who was lying drunk, with his cell phone camera. Knowing this, Mr. B reported to the police 20 minutes later and voluntarily submitted two cell phones belonging to Mr. A. The police requested Mr. A to check the photos and videos stored on the two mobile phones, and Mr. A confirmed the videos of Mr. B stored on one of them. However, Mr. A was unable to unlock another phone’s lock screen. The police suspected that the picture of Mr. B was hidden on the phone and decided to forensicize both phones. Professor A said that he would participate in the search and seizure of the cell phone that he confirmed first, but said that he had no intention of participating in the rest of the cell phone forensics. As a result of cell phone analysis, the police confirmed that Professor A committed a similar crime in 2013 on a cell phone that did not participate in the forensic. In December of that year, after having a year-end party with two male students at his home, he illegally filmed the bodies of drunken people with his cell phone. Person A, who was handed over to trial, was sentenced to six months in prison and one year of probation in the first trial. However, the second trial sentenced A to a fine of 3 million won and acquitted him of the crime in December 2013. The court did not accept the video footage stored on the cell phone that A did not participate in the forensic as evidence. The unanimous opinion of the Supreme Court, in which all the Supreme Court justices participate, was unanimous, and the second trial judgment was correct. “If a third party, such as a victim, submits an information storage medium owned and managed by the suspect, unless there is a special expression on the scope of submission of electronic information stored inside, the facts of the crime that motivated the confiscation due to voluntary submission and specific details・It should be limited to electronic information that is individually related”. The all-in-one group judged that “when searching for, copying, or printing cell phones, etc., the suspect should be guaranteed the right to participate and a list of confiscated electronic information should be delivered.” It added, “In principle, it is illegal to search for, reproduce, or print electronic information that exceeds the range of electronic information subject to seizure in the submitted information storage medium, and cannot be allowed as it is an illegal search and seizure in principle.” In the legal circles, there is an observation that the Supreme Court ruling will not make any major changes to the investigation site. In 2015, through the so-called ‘Chong Kun Dang Judgment,’ the Supreme Court ruled that the right to participate in the seized should be strengthened throughout the search and seizure process, because this ruling is an extension of that. Previously, in 2015, the Supreme Court allied body ruled that the investigation and seizure of Chonggeundang conducted by the prosecution in 2011 should be canceled, saying, “there is an illegality in the process of collecting digital evidence.” A prosecution official said, “Through the ‘Chong Kun Dang Judgment,’ it has been established that if there is separate evidence at the prosecution site, it should be stopped immediately and a new search and seizure warrant should be obtained. It is understood that it means that the scope of voluntary submission should be taken more strictly in the case of voluntary submission by a third party other than the suspect.” By Jeon Kwang-jun, staff reporter [email protected]


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