공소제기 후 검사가 수소법원 이외의 지방법원 판사로부터 발부받은 압수․ 수색 영장에 의해 수집한 증거의 증거능력 유무
Is it admissible, if the public prosecutor collected evidence by a search warrant issued from a district court judge other than the court in charge of the case, after the public prosecutor filed the charges?
- 김형두(Hyungdu Kim)
- 형사판례연구 제20권
- 등재여부 : KCI등재
- 503 - 526 (24 pages)
Article 215 of the Criminal Procedure Act does not limit explicitly the time limit that public prosecutor should request a warrant to seize,search or inspect evidence. But after the public prosecutor filed the charges, he cannot request a warrant by article 215 of the Criminal Procedure Act. After the indictment, the court may seize any articles which, it believes, may be used as evidence, or liable to confiscation, by article 106of the Criminal Procedure Act. And the court may, if necessary, search the defendant, effects, or dwelling or any other place of the defendant, by article 109(1) of the Criminal Procedure Act. The court may search the person, effects, dwelling or any other place of a person other than the defendant, only when there are circumstances which warrant the belief that there are articles liable to seize therein. If the public prosecutor collected the evidence by a search warrant issued from a district court judge other than the court in charge of the case, those evidence are not admissible in principle, because those collection of evidence does not follow legal procedures, which are prepared for human rights. Supreme Court decided it April 28, 2011, on 2009Do10412 case.
Ⅱ. 대상사건의 경과