Bar Exam Criminal Procedure: Systematic Organization Note on 'Search and Seizure by Warrant' [Free Access]
★ As this systematic table is extremely important for Bar Exam and Preliminary Bar Exam preparation, please keep it in mind at all times when considering search and seizure by warrant.
[Requirements for Search and Seizure by Warrant (Constitution Article 35, Article 218, Paragraph 1)]
1, Request for a warrant
(1) Requester → Public prosecutor, assistant public prosecutor, or judicial police officer (Article 218, Paragraph 3)
(2) Procedure → (i) A request form in a specific format (Rule 155) and (ii) Provision of materials indicating that the suspect or defendant is suspected of having committed a crime (Rule 156)
2, Requirements for issuing a warrant
(1) Existence of 'probable cause' (Constitution Article 35)
(i) Existence of suspicion of a specific criminal fact (Rule 156, Paragraph 1)
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(ii) Search → Probability that the items to be seized exist in relation to the suspected fact (Article 222, Paragraph 1; Article 102, Paragraph 2)
Seizure → Relevance between the items to be seized and the suspected fact (Article 222, Paragraph 1; Article 99, Paragraph 1)
(2) Specificity of the target (Article 219, Paragraph 1) - Items listed in the warrant
(3) Necessity of search and seizure (Article 218, Paragraph 1, first sentence)
3, Execution of a warrant
(1) Executor → Public prosecutor, assistant public prosecutor, or judicial police official (Article 218, Paragraph 1)
(2) Presentation of the warrant (Article 222, Paragraph 1; Article 110)
(3) Execution of the warrant
Search
<Procedural requirements>
・Must correspond to the search location, object, or body listed in the warrant
<Substantive requirements>
・Probability that the items to be seized exist in relation to the suspected fact
*In the case of a third-party search against someone other than the suspect, the search is permitted 'only when there are sufficient circumstances to recognize the existence of the items to be seized' (Article 222, Paragraph 1; Article 102, Paragraph 2)
・Necessity of the search
Seizure
<Procedural requirements>
・Must correspond to the items subject to seizure listed in the warrant
<Substantive requirements>
・Relevance between the items to be seized and the suspected fact
・Necessity of seizure
→ Comprehensively consider the nature and gravity of the crime, the value and importance of the seized items as evidence, the risk of the seized items being destroyed or concealed, the degree of disadvantage caused by the seizure, and other various circumstances
(4) Others - 'Necessary dispositions' (Article 222, Paragraph 1; Article 111, Paragraph 1)
[🌸Summary🌸]
📝 It is the same for Civil Procedure, but it is good to visualize which part of the system the question is asking about 💡
👉 Click here for a summary of arguments on the general theory of investigation
👉 Click here for a summary of arguments on the collection of physical evidence