제3자 보관 전자정보에 대한 압수·수색영장의 집행과 피의자의 절차적 권리

Abstract

With the advent of today’s information and communication society, a third party, not the suspect, stores the evidence required by the investigation agency in the criminal investigation. As a result, in the search and seizure between the investigative agency and the third parties, the seizure and search are frequently carried out. However, in the search and seizure of electronic information between the investigative agency and the third parties, the suspect’s procedural rights are not sufficiently guaranteed by the search and seizure procedures that the investigative agency must comply with. The reason is that in the case of a third-party seizure and search, the seized person is a third person, not the suspect, so the suspect who is the actual seized is excluded from the procedure. However, in the case of a third-party search and seizure, the interested parties are the suspect, not the third party, so it is reasonable to guarantee the suspect’s procedural rights. In Articles 121 and 122 of the Criminal Procedure Act, there is a provision that guarantees the suspect’s right to participate in the execution of the warrant. This provision plays an important role in ensuring the procedural rights of the suspect in the search and seizure by third parties. These procedural rights are not included in the scope of the prior warrant, but they are functioning today as a control device for the practical implementation of the warrant. In the case of search and seizure of e-mails stored by online service providers, it is difficult to present a warrant to a suspect or to issue a list of confiscated items under the current Criminal Procedure Act. However, it is necessary to ensure that the right to participate in the suspect. However, a more fundamental improvement measure is that the procedural rights guaranteed to the suspect in the search and seizure between investigative agency and the third parties, I think it is desirable to take legislative action.