증거 사용 단계에서의 관련성 검토의 문제 - 대법원 2023. 6. 1. 선고 2018도18866 판결 -

Article 215 of the Korean Criminal Procedure Act confines seizure to relevant evidence at the evidence collection stage, but it does not mandate a subsequent relevance inquiry at the stage of evidentiary use. The Supreme Court’s 2018Do18866 decision, however, seems to suggest otherwise, invoking the principle of warrant requirement and the principle of legality in compulsory measures. Neither rationale is persuasive: the warrant requirement ensures prior judicial control over compulsory acts. From this, a requirement to review relevance at the stage of evidentiary use cannot be directly derived. Likewise, since the use of evidence does not itself constitute a compulsory disposition, it is difficult to ground such a requirement in the principle of legality in compulsory measures. A more appropriate analogy lies in the Protection of Communications Secrets Act, which restricts the evidentiary use of intercepted communications for non-related crime because the relevance cannot be known ex ante. ‘Title Ⅲ’ of 18 U.S.C. requires minimization of interception of non-related communnications, but case law recognizes the admissibility of intercepted communications if the interception was conducted in a manner that minimized such interception. The statutes, instead, distinguish requirements at the evidence-use stage according to relevance. For tangible objects, where relevance can be assessed at collection, a further use-stage review lacks justification. Absent express statutory authority or compelling necessity, limiting evidentiary admissibility risks undermining the balance between truth-finding and privacy.