디지털 성범죄 수사 중 우연히 발견된 별건 촬영물에 대한 압수·수색 방안

Abstract

In our lives, digital devices have become as important as body parts. Sexual crimes using digital devices are also on the rise, and the issue of evidence capability related to digital evidence is being addressed as an issue in court every day. This paper is the result of considering sei zure and search methods to minimize the risk of destruction of evidenc e and spread of damage if evidence related to other case is found by a ccident from the perspective of a practitioner investigating a digital sex crime case. The precedent is that evidence should be collected with taking a se parate new seizure search procedure unless there is a connection with the original seizure crime, that is, indirect evidence of the existing seiz ure crime, or concrete evidence that can be seen as circumstantial evid ence. Furthermore, as a result of analyzing precedents, the Supreme Co urt tends to flexibly recognize the scope of relevance in digital sex cri me cases. However, even if the relevance standard presented by the pr ecedent is based on, there may be cases where relevance is denied, an d it is not difficult to find cases where relevance is denied in actual lo wer court cases. The reality is that it is difficult for an investigative a gency to predict whether or not the relevance will be recognized in a p ost-court from the early stages of evidence discovery and determine w hether a warrant procedure is necessary. In the end, the investigative a gency immediately should stop the seizure and search process when a separate filming is discovered, and get a separate warrant to secure evi dence. However, due to the characteristics of digital sex crimes, it is a problem that the time gap that can be an opportunity to destroy eviden ce, inflict secondary harm, and cause recidivism. In the case of the Uni ted States and Germany, the so-called “plane view doctrine”, “exigent circumstances exception”, “Vorlaufige Beschlagnahme eines Zufallsfunde s” are recognized without warrants for special evidence discovered by a ccident, which has great implications for us, but it is difficult to apply foreign legislation in practice because it is not currently ruled in our la w. In this situation, this paper sought to find a way to seize the elecrti c resource(digital evidence) urgently by utilizing the seizure and search system in criminal places recognized by the Korean Criminal Procedure Act, focusing on the fact that a special film elecrtic evidence(digital e vidence) is found due to the nature of digital sex crimes, such as viola ting the Special Act on the Punishment of Sexual Violence Crimes (pos session of film using cameras, etc.) or the constitution of the Act on t he Protection of Children and Adolescents (possession of sexual exploit ation, etc.) in relation to the film. Considering the characteristics of digital sex crimes, which can be r epeated and spread indefinitely even between seconds and minutes, and are very easy to destroy evidence, it goes without saying that it is mo re important than anything else to ensure prompt digital evidence and t o protect victims by preventing further crimes. In conclusion, it is expected that it will help secure evidence quickl y and protect victims by actively utilizing the ‘emergency seizure syste m at crime places’for the electric resource of a separate digital sex cri me case accidentally discovered during the investigation of a digital sex crime case.