Supreme Court: "If Consent Was Given for Search of Actual Residence Not Listed in Warrant, It Is Not an Illegal Act"

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has ruled that even if the police conducted a search and seizure at the suspect's actual residence not listed on the warrant, no civil liability for illegal acts under civil law can be established if there was the suspect's consent.

In a situation where a warrant permitting the search and seizure of the residence had already been issued by the court but the address was incorrectly stated, if the search and seizure was conducted with the party's consent, even if only formally, it is difficult to find that the public officials acted with intent or gross negligence to hold them liable for illegal acts.

The Supreme Court's Third Division (Presiding Justice Lee Heung-gu) announced on the 9th that it upheld the lower court's ruling dismissing the appeal in a civil damages lawsuit filed by hospital director A, who runs an otolaryngology clinic in Gangnam-gu, Seoul, against police officer B, insurance company employee C, and insurance company D for damages caused by illegal acts.

The court stated, "Upon reviewing the reasons for the lower court's judgment in light of relevant laws and records, the lower court's decision is proper, and there is no error in the legal interpretation concerning the warrant principle and the establishment of liability for illegal acts that would affect the judgment as argued in the appeal."

Police officer B began an investigation in 2014 after receiving a tip from insurance company D that "A's hospital receives discounted payments from patients but issues receipts with pre-discount amounts, causing excessive insurance payouts."

When applying for the search and seizure warrant, B stated in the application that "A's hospital issued false accident dates on medical certificates for cosmetic surgeries disguised as therapeutic surgeries, and pressured patients who did not require hospitalization to be admitted, indicating suspicion of insurance fraud requiring search and seizure."

At the end of the warrant application, it was noted that "three employees from the H team under the Financial Supervisory Service and two employees from the National Health Insurance Service will participate," but in fact, the three listed as H team members were all employees of insurance company D.

After obtaining the warrant, B and others proceeded to search A's hospital and residence, but A's actual residence differed from the address on the warrant.

B asked A for the actual residence and said, "The staff are going to the registered address, but I will have them come here (actual residence) to get cooperation." A then called his spouse, saying, "They are going to search the hospital and the house. We have nothing to hide, so show them everything. They are coming now."

Subsequently, B informed fellow officers on site of A's actual residence, and the police went there and obtained A's laptop and other items from A's wife.

However, the investigation concluded that A was cleared of all charges including fraud, false medical certificate creation, use of false medical certificates, and violations of medical law.

Ultimately, A, along with the Korean Medical Association and the National Doctors' Union, filed complaints against B and the participating police officers for false official document creation, use of false official documents, violations of medical law, and trespassing, and also filed a complaint against C, a former police officer working as an insurance investigator, for impersonating a public official and trespassing.

However, all others were cleared by the prosecution, and only C was fined 3 million won for impersonating a public official, with the fine confirmed after a formal trial.

Thereafter, A filed a civil damages lawsuit claiming that the illegal execution of the warrant damaged the hospital's image.

In the first trial, the issue was that B falsely listed insurance company employees like C as Financial Supervisory Service employees in the warrant application.

The court pointed out, "Under the Criminal Procedure Act, search and seizure warrants are executed by judicial police officers under the direction of prosecutors, but there is no explicit provision regarding the participation of non-police personnel. In practice, assistance from experts may be necessary for proper execution, so the mere accompaniment of non-police personnel does not make the execution illegal."

It added, "Although it was highly inappropriate to allow insurance company employees, who are in a similar position to complainants, to participate in the warrant execution stage, since B led the execution and the insurance employees only assisted, it cannot be judged as illegal," and dismissed A's claim.

The court also found it difficult to establish civil liability for illegal acts despite the former police officer C being fined for impersonating a public official.

The court stated, "Although the defendant participated in the warrant execution process and had hospital staff prepare statements, resulting in a conviction for impersonating a public official, this cannot be considered an illegal act against the plaintiff. Even if the defendant had hospital staff prepare statements as part of evidence collection for the plaintiff's criminal responsibility, the same applies."

Furthermore, the court said, "Even if the alleged illegal acts claimed by the plaintiff were recognized, the warrant execution was part of the investigation into the plaintiff's criminal suspicion, so it cannot be said that the plaintiff was unable to operate the hospital properly during the investigation or that damages occurred due to the defendants' actions. There is no causal relationship between the claimed damages and the defendants' actions, and there is no evidence that the damages (excluding consolation damages) claimed by the plaintiff occurred. This holds true even though the plaintiff was cleared of charges after the investigation."

Meanwhile, in the second trial, the issue was the search and seizure of A's actual residence not listed on the original warrant.

However, the court ruled, "Although the warrant included permission to search the plaintiff's residence, the address was incorrectly stated. If B conducted the search and seizure with the plaintiff's formal consent, it is difficult to find that B intentionally or through gross negligence violated official duties or that damages causally related to such violations occurred," and dismissed A's appeal.

The Supreme Court also found no problem with the judgments of the first and second trials.

The court stated, "There is room to view negatively whether the search and seizure of the actual residence was conducted through a lawful procedure with the plaintiff's voluntary consent. However, if consent was obtained even formally, it is difficult to find that B intentionally or through gross negligence violated official duties or that damages causally related to such violations occurred."

This content was produced with the assistance of AI translation services.