2021년도 형사소송법 판례 회고 (Review of the Criminal Procedure Precedents of the Korean Supreme Court in 2021)

서지정보

· 발행기관 : 한국형사판례연구회
· 수록지 정보 : 형사판례연구 / 30권 / 571 ~ 635페이지
· 저자명 : 강동범

초록

This paper examines the Criminal Procedure Precedents of the Korean Supreme Court in 2021. I describe in chapter 1 the issues of the Supreme Court Judgment(2021.11.18. 2016do348 en banc)(hereinafter referred to as the ‘en banc’) and the overall order of review.
In Chapter 2, while discussing the en banc in detail, I agree with the conclusion but point out the problem with the argument and suggest an alternative. In other words, when an investigative agency confiscates electronic data from the mobile phone of a suspect arbitrarily submitted by a third party, such as the victim, (1) (method of seizure) the principle of confiscating the output of electronic data related to the facts of the alleged accusation, with the exception of confiscating the electronic data storage medium itself or a copy of the alleged object, (2) (object of seizure) electronic data that is related to the facts of the alleged and has the minimum value to prove it, and (3) (the seizure procedure) appropriate measures should be taken to ensure the procedural rights of the accused, such as guaranteeing the right to participate and issuing a list of the seized electronic data to the accused who is the actual confiscator.
In the case of (3) of these, the basis for this is not Article 121, 129 of the Criminal Procedure Act, but rather the distinction between the arbitrary submission of the data storage medium and the confiscation of the stored data, and in the latter case a search warrant for seizure is required.
Judgments on investigation and prosecution are dealt with in Chapter 3, which dealt with the delay in the execution of the arrest warrant and the unlawfulness of detention, the effect of the seizure and search by the seizure and search warrant that incorrectly marked the accused, the criteria for determining whether the seizure and search warrant had an objective relevance to the facts of the alleged crime, and the judgment that determined whether the abuse of the right to prosecution. Of these, in a case in which a prosecution was filed 4 years after the suspension of prosecution, the first decision by the Supreme Court to explicitly admit abuse of the right to prosecution and sentence the prosecution to be dismissed is meaningful.
In Chapter 4, I looked at the Supreme Court decisions concerning the trial proceedings and appeals.
The final chapter introduces the judgment on the timing of the disappearance of the parties' capacity of the corporation, the illegality of the entrapment investigation, and the retrial proceedings.

영어초록

This paper examines the Criminal Procedure Precedents of the Korean Supreme Court in 2021. I describe in chapter 1 the issues of the Supreme Court Judgment(2021.11.18. 2016do348 en banc)(hereinafter referred to as the ‘en banc’) and the overall order of review.
In Chapter 2, while discussing the en banc in detail, I agree with the conclusion but point out the problem with the argument and suggest an alternative. In other words, when an investigative agency confiscates electronic data from the mobile phone of a suspect arbitrarily submitted by a third party, such as the victim, (1) (method of seizure) the principle of confiscating the output of electronic data related to the facts of the alleged accusation, with the exception of confiscating the electronic data storage medium itself or a copy of the alleged object, (2) (object of seizure) electronic data that is related to the facts of the alleged and has the minimum value to prove it, and (3) (the seizure procedure) appropriate measures should be taken to ensure the procedural rights of the accused, such as guaranteeing the right to participate and issuing a list of the seized electronic data to the accused who is the actual confiscator.
In the case of (3) of these, the basis for this is not Article 121, 129 of the Criminal Procedure Act, but rather the distinction between the arbitrary submission of the data storage medium and the confiscation of the stored data, and in the latter case a search warrant for seizure is required.
Judgments on investigation and prosecution are dealt with in Chapter 3, which dealt with the delay in the execution of the arrest warrant and the unlawfulness of detention, the effect of the seizure and search by the seizure and search warrant that incorrectly marked the accused, the criteria for determining whether the seizure and search warrant had an objective relevance to the facts of the alleged crime, and the judgment that determined whether the abuse of the right to prosecution. Of these, in a case in which a prosecution was filed 4 years after the suspension of prosecution, the first decision by the Supreme Court to explicitly admit abuse of the right to prosecution and sentence the prosecution to be dismissed is meaningful.
In Chapter 4, I looked at the Supreme Court decisions concerning the trial proceedings and appeals.
The final chapter introduces the judgment on the timing of the disappearance of the parties' capacity of the corporation, the illegality of the entrapment investigation, and the retrial proceedings.

참고자료

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