Korean Court Rules that Search & Seizure was in Violation of the Korean Criminal Procedure Act

In a monumental decision by the Supreme Court of Korea, the Korean Supreme Court overturned and remanded a ten-month sentence for possession of marijuana since investigators serving a search warrant had the participation of, only, a mentally impaired child of the accused violating the “right to participate” in a search and seizure.

The accused was indicted on charges of possession of approximately 0.62 grams of marijuana. When investigators conducted a search and seizure at his residence in Seoul, the investigators only allowed the accused’s daughter to participate in the search and seizure. The daughter of the accused has an IQ of 57 and a social maturity age of 11. The first trial and the appeals court found the accused guilty by utilizing evidence obtained through the search and seizure and sentenced the accused to 10 months in prison, while the Supreme Court reversed and remanded the case to the lower court, thus overturning the conviction.

The Korean Supreme Court ruled that:

“The purpose of Article 123, Paragraphs 2 and 3, and Article 219 of the [Korean] Criminal Procedure Act, which requires the owner or neighbors to participate when executing a search and seizure warrant in a residence, etc., is to ensure the appropriateness of the warrant execution procedure by having people with a close interest in places where the need for protection of basic rights such as the freedom of residence or the secrecy and freedom of private life participate, thereby protecting the parties subject to compulsory disposition by investigative agencies or courts, and ultimately protecting the basic rights of the people . . .In light of this, the owner or neighbors who participate in the execution of a search and seizure warrant according to the relevant provisions must have at least the ability to participate to understand the meaning of the search and seizure procedure.”

“If those participating in the execution of a search and seizure warrant do not have the ability to participate, it is difficult to effectively achieve the legislative intent of the Criminal Procedure Act to protect the parties from illegal or unfair dispositions or acts that may arise during the execution of the warrant and to secure the appropriateness of the warrant execution procedure, as well as the constitutional requests such as protection of basic rights, due process, and the principle of warrants. . .If the execution of a search and seizure warrant for a residence, etc. as stipulated in Article 123, Paragraph 2 of the Criminal Procedure Act is carried out without the participation of the owner of the residence, neighbors, etc., it is illegal unless there are special circumstances. Furthermore, even if they did participate, if the participants do not have or lack the ability to participate, it cannot be considered that the legal requirements for the search and seizure procedure stipulated in Articles 123, Paragraphs 2 and 3 of the Criminal Procedure Act have been met, just as if it had been carried out without the participation of the owner of the residence, neighbors, etc., and therefore it is illegal.”

The case is a pivotal case in Korean Criminal Procedure jurisprudence establishing that the right to participate must include a person with the ability to understand the purpose and meaning of the search and seizure procedure.

Sean Hayes is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw, and IPG Legal is consistently ranked Top Dispute Resolution Law for our litigation services.  

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