임의제출물 압수에 있어서의 임의성 심사 및 적법요건 - 대상판결: 대법원 2019. 11. 14. 선고 2019도13290 판결

The seizure of a voluntarily submitted item does not require prior warrants nor post warrants because it is based on voluntary intention without any compulsory force. In this regard, it differs from emergency seizure controlled by post warrants. However, investigative agency’s use of force may be involved in the process, and in this case, items are practically confiscated under the guise of voluntary submission. Recently, the Uijeongbu District Court stated that the seizure of a voluntarily submitted item is not permitted at the scene of arrest, but considering the wording of Article 218 of the Korean Criminal Procedure Act, the decision is not logical. However, since it is necessary to prevent voluntary submissions from becoming a means of bypassing the doctrine of warrants, a strict examination of voluntariness must be carried out at the trial stage. We can establish a couple of criteria in assessing voluntariness. These factors include: whether the defendants are informed that they are not obliged to consent; whether the defendants specify the scope of the articles covered by the consent; the existence of objective documents such as confirmation of consent; whether the defendants admit the allegations; and the surrounding circumstances. In addition, whether the seizure of voluntarily submitted items is relevant to the alleged facts and whether a person having submitted an item is guaranteed the right to participate in the execution procedures constitute legal requirements. Besides, an inventory of the seized property (a detailed list in case of electronic information) ought to be compiled and issued.