CONTENTS
- 1. Court-Martial, the Defendant Indicted for Violation of the Military Secret Protection Act
- 2. The Defendant Tried by Court-Martial, the Lower Court's Determination Was Acquittal
- 3. The Defendant Tried by Court-Martial, the Supreme Court's Determination Differing From the Lower Court
- - 1. The Supreme Court's Determination on the Legality of the Search and Seizure
- - 2. The Supreme Court's Determination on the Admissibility of Evidence
- 4. Court-Martial, Daeryun's Strategy?
1. Court-Martial, the Defendant Indicted for Violation of the Military Secret Protection Act
The defendant who stood trial before a court-martial had been indicted for violation of the Military Secret Protection Act.
While serving as an inspector with the Defense Readiness Inspection Team, the defendant had received clearance to handle military secrets and, in the course of his duties, handled military secrets produced or obtained at the Ministry of National Defense, the Defense Readiness Inspection Team, and elsewhere.
Although the defendant's clearance to handle military secrets was revoked upon his discharge from service, he took out, among his personal belongings, an operational status map classified as a Military Class II secret and documents each classified as a Military Class III secret that he had obtained during his service, and he kept them at his residence.
While the defendant, a service member, continued to keep the military secret documents at his home even after his discharge, the documents in this case were seized during a search and seizure in a separate Military Secret Protection Act violation case involving a third party.
The defendant was indicted for violation of the Military Secret Protection Act based on an unauthorized person's possession of military secrets, and he stood trial before a court-martial.
2. The Defendant Tried by Court-Martial, the Lower Court's Determination Was Acquittal
As to the defendant who was tried by court-martial, the lower court stated that it upheld the first-instance judgment, which had found him not guilty.
The reasons the lower court upheld the first-instance judgment and found that there was no proof of the crime as to the facts charged in this case are as follows.
1. The alleged facts stated in the warrant were that a non-indicted person had disclosed to the defendant the plan to reorganize and relocate the S Division unit.
2. Each of the documents in this case was created and obtained independently of the alleged facts stated in the warrant, and it is neither indirect evidence nor circumstantial evidence of those alleged facts.
Because they are unrelated to the alleged criminal facts that served as the grounds for issuing the warrant, each of the documents in this case cannot be used as evidence of guilt for the defendant's violation of the Military Secret Protection Act.
3. Even if a new warrant for search, seizure, and verification had been newly obtained from the court with respect to each of the documents in this case, the illegality of the initial seizure cannot be cured, and therefore admissibility cannot be recognized.
The remaining evidence submitted by the prosecutor to prove the facts charged was all secondary evidence obtained through each of the documents in this case, so it likewise cannot be used as evidence.
3. The Defendant Tried by Court-Martial, the Supreme Court's Determination Differing From the Lower Court
The Supreme Court's determination regarding the defendant tried by court-martial differed from that of the lower court.
The Supreme Court set out the following legal principles and reversed and remanded the lower judgment.
1. The Supreme Court's Determination on the Legality of the Search and Seizure
Under the former Military Court Act, "a military prosecutor may, when necessary for a criminal investigation, conduct a search, seizure, or verification pursuant to a warrant issued by a military judge of the military court."
It provides that a military court may, when necessary, seize items deemed to be evidence or search other places, limited to those that can be recognized as having a connection to the case under trial.
The phrase "has a connection to the case" as provided by the military court means that the item is related to the alleged facts stated in the search and seizure warrant and has at least minimal value in proving those facts.
The Supreme Court determined that relevance may also be recognized where the item can be used as indirect or circumstantial evidence proving the motive and circumstances of the crime, the means and method of the crime, or the time and place of the crime, or as corroborating evidence for a confession.
2. The Supreme Court's Determination on the Admissibility of Evidence
According to Supreme Court precedent, an investigative agency may not seize evidence that has no connection to the alleged criminal facts that served as the grounds for issuing the warrant.
In addition, without obtaining a separate warrant, the seized item or seized information may not be used as evidence of guilt for a crime that has no connection to the alleged facts of the search and seizure warrant that served as the basis for the seizure. (See Supreme Court Judgment 2018 Do 1886, etc.)
The Supreme Court determined that, together with the above precedent, "relevance at the evidence-collection stage and relevance for the use of evidence" are distinct.
That is, if an investigative agency seized an item whose relevance could be recognized in light of the circumstances known or knowable at the time the warrant was executed, then even if circumstances negating relevance are later revealed, the seizure already carried out cannot immediately become unlawful.
The lower court assessed the illegality of the initial seizure on the basis of how each of the documents in this case was created and obtained; however, it viewed these as circumstances confirmed only later, during the investigation and trial that followed the initial seizure, and as circumstances that could not readily be regarded as known or knowable to the investigative agency at the time of the initial seizure.
The Supreme Court determined that objective and personal relevance could be recognized between the alleged facts and the documents in this case and that the documents had value as direct evidence corroborating the confession.
The Supreme Court determined that the lower judgment had misapprehended the legal principles on the relevance required for a search and seizure and on the exclusionary rule for unlawfully obtained evidence, and it reversed and remanded the lower judgment.
4. Court-Martial, Daeryun's Strategy?
A court-martial refers to a trial conducted before a military court established within the armed forces against an offender who has violated military law, such as the 🔗Military Criminal Act.
In this court-martial case involving a violation of the Military Secret Protection Act, the central issue was whether the search and seizure was lawful and whether the evidence was admissible.
Daeryun Law Firm LLP, in coordination with the 🔗Examination of Evidence, Digital Forensics, and Security Group, develops defense strategies against unlawful searches and seizures and works to protect the rights of its clients.
In addition, an 🔗attorney experienced in military matters, with knowledge of internal military procedures and law, provides tailored response strategies based on a close analysis of military court and Supreme Court precedent.
