[Editor’s Note:
The Supreme Court of Korea just rendered a landmark decision that reverses a long-standing position held by courts for some 40 years that had recognized the admissibility of evidence illegally obtained. The Supreme Court ruling came in a case (2007Do3061) involving the governor of Jeju Province who was charged with violation of Korea’s election laws, and because of the said ruling, the case is now sent back to the Gwangju High Court which will now re-review the case in the absence of the illegal evidence thrown out by the Supreme Court. In this case, the illegal evidence were certain documents obtained by the prosecutors from places not specified in the search warrant, and such evidence had been admitted as part of evidence by lower courts, leading to the governor being fined in the amount of 6 million KRW. If the Supreme Court had confirmed the lower court’s judgment, the Jeju governor would have been stripped of his position as governor in accordance with applicable election laws.

Prior to the new Supreme Court ruling, the position of the Supreme Court on admissibility of illegal evidence was that even if any material seized during warrant search were confiscated in violation of law, such illegally obtained material should still be admissible as evidence since the illegal search did not cause the nature and appearances of the relevant material confiscated to be modified in any way, thereby preserving the value of the seized material as evidence. Looking at this matter from a US law perspective, it is hard to believe that the old position of the Supreme Court concerning the illegal evidence had existed as long as it had been. However, the new Supreme Court ruling is indeed a testament to the on-going efforts of the Korean courts to improve and enhance human rights guaranteed under the constitution.

It is lasted noted, however, that the Supreme Court in the above-noted case still left often the possibility that some evidence, even if illegally obtained, could still be admitted as evidence. That is, the Supreme Court stated in announcing its judgment that if, looking at the circumstances of a case comprehensively and totally, denial of admissibility of certain illegal evidence in a case results in a situation that contravenes the purpose (i.e., achieving justice) which the constitution and the criminal action laws are trying to achieve, as compared to the level of illegality committed in taking the relevant evidence, then the said evidence could still be admitted.

Please read on the following newspaper article for more details on the above Supreme Court decision.]

Source: Joongang Daily News; November 16, 2007

Supreme Court throws out all evidence taken illegally

Ending a long standing legal controversy, the nation’s highest court yesterday ruled that evidence gathered illegally can never be accepted in a trial, and ordered Jeju Governor Kim Tae-hwan to be tried again on a charge of violating the country’s election law.
In the past, evidence gathered illegally ― except for testimony gathered under unlawful circumstances ― could be admitted in court.

“Evidence gathered unlawfully can not be accepted,” said yesterday’s Supreme Court ruling, signed by 11 judges. “The procedures were made to protect basic human rights.”
Kim, the governor, was convicted in a lower court of violating the election law. A higher court upheld the conviction. If convicted, Kim will have to step down from his post and pay a fine of 6 million won ($6,500). Kim can remain in office until the Gwangju High Court tries the case without the evidence that the Supreme Court said was gathered illegally.

During his trial, Kim said that certain documents confiscated during the investigation had been taken from places not specified in the search warrant, so the evidence should not have been considered. Prosecutors claimed the process was legitimate.

Kim was indicted for asking two Jeju provincial officials in February of last year to provide him with lists of people who could work for his campaign from different community and professional groups in Jeju. It is illegal to involve government officials in election campaigns. Kim won the election that May, getting a four-year term.

Following a conviction by a Jeju Court in January, the Gwangju High Court, an appellate court, handed down the fine in April when it upheld the conviction. That court will now have to retry the case. When an elected government official is sentenced to pay a fine of 1 million won or larger and the sentence is finalized, his election automatically becomes invalid and another election is required.

A stricter, more comprehensive law tightening standards for how evidence is gathered, defining what constitutes evidence and covering investigative procedures, passed the National Assembly. It is expected to be introduced next year