2007Mo82 Re-appeal against a Dismissal Order as to the Interim Appeal against a Decision not to Request a Warrant

by the Supreme Court of Korea

Justices Park Si-hwan(Presiding Justice), Kim Yong-dam, Park Il-hwan, Kim Neung-hwan(Justice in charge)

Main Issue

Whether a public prosecutor's failure to effect a forced disposition such as a request for warrants for seizure-search can be viewed as a "disposition as to seizure," against which a reappeal can be raised as an objection, under Article 417 of the Criminal Procedure Act(negative)

Summary of Decision

From the perspective of a compilation of the provisions in the Constitution, the Criminal Procedure Act and the Public Prosecutor's Office Act, it shall not be deemed for a person who complains or accuses and for the rest of the general public to have the right to request a public prosecutor to take measures for a legal disposition such as a request of warrant, and that if the public prosecutor does not take measures for a legal disposition such as a request of warrant in the process of an investigation, that would have a direct effect on the legal status of a person who complains or accuses and the rest of the general public. Therefore, if a public prosecutor did not take measures for a legal disposition such as a request of a confiscation or a search warrant in the process of an investigation to collect evidence which led to a failure to secure evidence and to a disposition not to institute a public action, aside from expressing dissatisfaction about the disposition not to institute a public action through a request for arbitration in accordance with the Criminal Procedure Act or through an appeal in accordance with the Public Prosecutor's Office Act, it shall not be deemed that for a public prosecutor not to take measures for a legal disposition such as a request of a confiscation or a search warrant in the process of an investigation shall be deemed as a "disposition concerning confiscation" stipulated in Article 417 of the Criminal Procedure Act and shall be subject to an appeal. The so-called order to investigate further made by the chief of a High Public Prosecutor's Office et al. as a result of an appeal in accordance with the Public Prosecutor's Office Act against a disposition not to institute a public action by a public prosecutor is nothing more than the execution of the right to command within prosecutors, so it shall not be deemed differently only because it has been pointed out in the order to investigate further that evidence needs to be confiscated and searched.

Reference Provision

Article 417 of the Criminal Procedure Act

Article 417 of the Criminal Procedure Act (Idem)

A person who objects to a disposition concerning confinement, seizure or restoration of seized articles which were effected by a public prosecutor or a judicial police officer, may demand cancellation or alteration to the court which has jurisdiction over the judicial police officer or to the court corresponding to the public prosecutor's office to which the public prosecutor belongs.

• Re-appellant: Re-appellant

• Order of the court below: Seoul South District Court Order 2007Ro1 delivered on Jan. 12, 2007

Disposition

The reappeal shall be dismissed.

Reasoning

This is to judge the Reasons for Reappeal.

1. Article 12 Section 1 of the Constitution stipulates, "All citizens shall have personal freedom. Nobody shall be arrested, restrained, confiscated, searched or examined unless it is by law," and the body of Section 3 stipulates, " An arrest, restraint, confiscation or search shall be conducted only with a warrant issued by a judge at the request of a prosecutor in a legitimate procedure," while Article 16 stipulates, "A confiscation or search of a residence shall be conducted only with a warrant issued by a judge at the request of a prosecutor," which clarifies the so-called principle of warrant, and Article 199 Section 1 of the Criminal Procedure Act stipulates, "Necessary research shall be conducted to achieve the goal of investigation, but a legal disposition shall be restricted to a case where there is a special regal provision, and within a minimum necessary scope," while Article 215 stipulates, "When necessary to investigate a crime, the prosecutor shall confiscate, search or inspect with a warrant that he had requested and had been issued by a district court judge," and such principle of warrant is only to deter and restrict a legal disposition such as an arrest, restraint, confiscation or search, and shall not to force or obligate the above.

2. Meanwhile, Article 195 of the Criminal Procedure Act stipulates, "When there is a suspicion of a crime, the prosecutor shall investigate the suspects, criminal facts and evidence," which assigns the job of investigation to the prosecutor, while Article 246 stipulates, "A public action shall be instituted by the prosecutor", which is to adopt the principle of national prosecution, while Article 247 Section 1 stipulates, "In view of the provisions of Article 51 of the Criminal Act, the prosecutor shall not bring a public action" to adopt the principle of convenient indictment, while permitting the general public including victims of crimes to offer leads for investigations through a complaint or an accusation (Article 223 and Article 239), while permitting the person who complains or accuses to request an arbitration concerning a disposition not to institute a public action by the prosecutor as stipulated in Article 123 and Article 125 of the Criminal Code (Article 260 and afterwards), while Article 10 of the Public Prosecutor's Office Act stipulates that a disposition not to institute a public action by the prosecutor shall be appealed against through an appeal to the High Public Prosecutor's Office or through an appeal to the Supreme Public Prosecutor's Office, but there is no institutional device for a person who complains or accuses and for the rest of the general public to be involved or interfere with whether the prosecutor shall conduct a legal disposition such as an arrest, restraint, confiscation or search.

3. From the perspective of a compilation of the provisions in the Constitution, the Criminal Procedure Act and the Public Prosecutor's Office Act, it shall not be deemed for a person who complains or accuses and for the rest of the general public to have the right to request a public prosecutor to take measures for a legal disposition such as a request of warrant, and that if the public prosecutor does not take measures for a legal disposition such as a request of warrant in the process of an investigation, that would have a direct effect on the legal status of a person who complains or accuses and the rest of the general public. Therefore, if a public prosecutor did not take measures for a legal disposition such as a request of a confiscation or a search warrant in the process of an investigation to collect evidence which led to a failure to secure evidence and to a disposition not to institute a public action, aside from expressing dissatisfaction about the disposition not to institute a public action through a request for arbitration in accordance with the Criminal Procedure Act or through an appeal in accordance with the Public Prosecutor' s Office Act, it shall not be deemed that for a public prosecutor not to take measures for a legal disposition such as a request of a confiscation or a search warrant in the process of an investigation shall be deemed as a "disposition concerning confiscation" stipulated in Article 417 of the Criminal Procedure Act and shall be subject to an appeal.

The so-called order to investigate further made by the chief of a High Public Prosecutor's Office et al. as a result of an appeal in accordance with the Public Prosecutor's Office Act against a disposition not to institute a public action by a public prosecutor is nothing more than the execution of the right to command within prosecutors, so it shall not be deemed differently only because it has been pointed out in the order to investigate further that evidence needs to be confiscated and searched.

Although the decision by the court below is somewhat inappropriate in explaining the reasons, it is justifiable that the conclusion excluded the appeal in this case, and there is no violation of the Constitution, the laws, the orders or the regulations that affected the trial.

The Supreme Court Decisions that are cited in the Reasons for Appeal shall not be applied in this case as they concern different issues.

The part where the court below judged that the failure to request a confiscation warrant by the public prosecutor in this case is not illegal is nothing more than an additional judgment on the premise that such failure to request a confiscation warrant by the public prosecutor constitutes the "disposition concerning confiscation" stipulated in Article 417 of the Criminal Procedure Act, so it does not affect the result of the trial even if there is violation of the law as argued in the Reasons for Appeal.

4. Therefore, the appeal shall be dismissed and this decision is delivered with the assent of all Justices involved.

Source

• Supreme Court Order 2007Mo82 Delivered on May 25, 2007, Supreme Court Library of Korea