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On the Right to Request the Return of Seized Articles HAN, Sang-Hoon (Professor, Doctor in Law College of Law, Kookmin University) The Korean Code of Criminal Procedure rules the requirements and procedure of search and seizure, and also the return or restoration of, or temporary return of, articles seized(CCP §§133, 134 etc). Nevertheless it cannot be denied that the text of the provisions is somewhat obscure and there are still some problems in interpretation of the text. While there has been a lot of studies and discussions on the detention and arrest of suspects so far, the question on the return of the seized articles has not been so. In the meantime the decision of the Supreme Court in 1996(1996. 8. 16. 94mo51, Diamond Case) held that the right to request the return of seized articles shall not be waivered and that the prosecution or the police shall restore the articles to the suspect even though he gives up the ownership of the seized articles. Since this decision there has been a debate, and some problems about this provision still remain. The present article comments on the decision of the Supreme Court and develops a new interpretation on the Section 133 CCP. Conclusion: 1) On decision of dismissal the prosecution should in principle return the seized articles to the suspect or a victim. Provided that the seized articles are prohibited to possess, the seized articles may not be returned. 2) On decision not to return of the illegal articles they should be abolished, only with notification to the parties interested and opportunity to be heard. 3) Abolition of seized articles(§130 II CCP) is allowed under only two circumstances, first, when the articles represent an urgent danger to the life, body or health of the public, and second when the prosecution dismiss the case on the ownership waiver of the owner. On either case the procedural rights of the interested must be guaranteed.


On the Right to Request the Return of Seized Articles HAN, Sang-Hoon (Professor, Doctor in Law College of Law, Kookmin University) The Korean Code of Criminal Procedure rules the requirements and procedure of search and seizure, and also the return or restoration of, or temporary return of, articles seized(CCP §§133, 134 etc). Nevertheless it cannot be denied that the text of the provisions is somewhat obscure and there are still some problems in interpretation of the text. While there has been a lot of studies and discussions on the detention and arrest of suspects so far, the question on the return of the seized articles has not been so. In the meantime the decision of the Supreme Court in 1996(1996. 8. 16. 94mo51, Diamond Case) held that the right to request the return of seized articles shall not be waivered and that the prosecution or the police shall restore the articles to the suspect even though he gives up the ownership of the seized articles. Since this decision there has been a debate, and some problems about this provision still remain. The present article comments on the decision of the Supreme Court and develops a new interpretation on the Section 133 CCP. Conclusion: 1) On decision of dismissal the prosecution should in principle return the seized articles to the suspect or a victim. Provided that the seized articles are prohibited to possess, the seized articles may not be returned. 2) On decision not to return of the illegal articles they should be abolished, only with notification to the parties interested and opportunity to be heard. 3) Abolition of seized articles(§130 II CCP) is allowed under only two circumstances, first, when the articles represent an urgent danger to the life, body or health of the public, and second when the prosecution dismiss the case on the ownership waiver of the owner. On either case the procedural rights of the interested must be guaranteed.