Case concerning the admissibility of seized articles where, after a seizure under Article 216(3) of the Criminal Procedure Act, the seizure warrant applied for was denied, and while the seized articles had not yet been returned, another seizure warrant was applied for and issued, whereupon the seized articles were returned to the person from whom they had been seized and were simultaneously seized again

【Holding】

Where an application for a seizure and search warrant is filed with respect to an article seized without a warrant at the scene of a crime during or immediately after its commission, but the warrant is not issued, whether the investigative agency must immediately return the seized article (affirmative), and whether a seized article that was not immediately returned is admissible (negative) / The meaning of immediately returning the seized article in such a case

【Summary of Decision】

Article 216(3) of the Criminal Procedure Act provides: "Where, at the scene of a crime during or immediately after its commission, there is urgency such that a warrant of a judge of the court cannot be obtained, a seizure, search, or inspection may be conducted without a warrant. In such a case, a warrant shall be obtained without delay afterwards." Where an application for a seizure and search warrant is filed under this provision but the warrant is not issued, the investigative agency must immediately return the seized article, and a seized article that was not immediately returned cannot be used as evidence of guilt; in light of the importance of the warrant requirement declared by the Constitution and the Criminal Procedure Act, this conclusion does not change even if the defendant or defense counsel consented to its use as evidence. Here, immediately returning the seized article means that, absent special circumstances such as where it is markedly difficult for the investigative agency to return the seized article right away, the investigative agency commences the procedure for returning the seized article at the very moment the warrant application is denied, and actively restores the state existing prior to the seizure without delay, such as by delaying that procedure or unnecessarily continuing the investigative agency's possession.

【Referenced Statutes】

Articles 216(3), 308-2, and 318(1) of the Criminal Procedure Act

【Referenced Precedents】

Supreme Court Decision 2009Do11401, December 24, 2009 (Gong 2010Sang, 298)