정보저장매체 ʻ압수ʼ의 검토 - 형사소송법 제106조 제3항 단서의 해석을 중심으로 -

Abstract

The body text of Article 106, Clause 3 of the Criminal Procedure Ac t states that in cases where the object to be seized is data storage me dium, only data related to the charges should be selectively seized as a principle. However, the proviso states that in exceptional cases where t he principle method is not possible or substantially impracticable to acc omplish the purpose of seizure, the data storage medium may be seize d. Although the law explicitly regulates the seizure of data storage med ium in this manner, various researches and regulations often interpret t his as 'Relocation', leading to a lack of clear distinction between 'Seizur e' and 'Relocation' . The researches that interpret the proviso in Article 106, Clause 3 as a n 'Relocation' argue that the seizure of data storage medium can be con ducted based on Clause 1. However, Clause 1 only can be applied to cases where the data storage medium becomes the subject of seizure reg ardless of the stored data. Since it doesn't address the cases where th e medium becomes subject of seizure due to its nature as a medium fo r storing data, in those cases Article 106, Clause 3's proviso should be the basis for such seizure. And seizing the data storage medium involves the seizure of the data s tored within it. But in relation to data, Article 106, Clause 3's body te xt still apply, so the scope of the data to be seized is limited to the o ne only related to the charges. On the other hand, we need to think about better way of interpretation that can make harmony with practice which understands “selective data seizure is not possible or substantially impracticable to accomplish the purpose of seizure,” as the reason for ‘Relocation’. It can be the best o ption if we interpret that we may ‘Relocate’ data storage medium if the selective seizure is impossible or inadequate ‘on-the-site’, and we may ‘Seize’ data storage medium if the selective seizure is impossible or ina dequate regardless ‘on-the-site or not’ And if the so-called 'cutting method' of seizure is possible under our l egislation, it can make it possible to achieve seizure objectives without seizing the medium itself. However, the current law does not explicitly state methods like data deletion or transfer as seizure methods. Althou gh there is room for interpretation under Article 130, Clause 2 regardin g the disposal of seized items, it has distinct limitations. So we need t o revise relevant regulations as soon as possible.