유류물 압수 - 대법원 2024. 7. 25. 선고 2021도1181 판결 -

Article 218 of the Criminal Procedure Act regulates the seizure of discarded article. The Act does not provide a definition of "discarded article." Based on dictionary definitions and other considerations, the term encompasses not only items whose possession was involuntarily lost by the right holder (lost items) but also those voluntarily relinquished (abandoned items). The judgment under review categorizes the objects of discarded article seizure into three groups but does not treat them equally. It elevates ownerless property (the first category) and lawfully abandoned property (the second category) as primary targets. In contrast, other items, such as lost property or unlawfully abandoned property, are relegated to a secondary category referred to as "objects with the appearance of primary targets, etc." According to the approach taken in the judgment, items without a right holder constitute the primary targets of discarded article seizure, whereas items with a right holder are treated merely as "objects with the appearance of primary targets, etc." However, there is no natural conceptual basis for differentiating the objects of seizure depending on the presence or absence of a right holder. The reason for attempting to create distinctions, despite insufficient conceptual justification, appears to lie in prioritizing investigative convenience in the procedure for seizing discarded article. The judgment further states that, in principle, the seizure of discarded article is not subject to limitations related to relevance with the case. Moreover, when a data storage medium is seized as discarded article, the suspect is not considered a substantive subject of seizure under ordinary circumstances, thus denying them rights such as participation in the procedure. These conclusions stem from the premise of differentiation among seizure targets. Treating cases with a right holder as inferior risks sacrificing the personal legal interests of the right holder for the sake of achieving investigative objectives. To harmonize investigative goals with the personal legal interests of the right holder in the context of discarded article seizures, cases with and without a right holder should be treated equally. It is improper to favor the former and treat the latter as subordinate. The presence or absence of relevance should also be assessed based on this equal relationship. The absence of a right holder, which exempts the case from relevance limitations, cannot serve as the general principle. It should be regarded as being on equal footing with cases where a right holder is present and subject to such limitations. Furthermore, admissibility of evidence should not be easily granted solely based on the investigative agency's perception of the property's outward appearance.