디지털 증거 압수·수색 시 참여권자 관련 실무상 문제 - 대법원의 ‘실질적 피압수자’ 법리 중심으로 -

Abstract

The current Criminal Procedure Act and Rules for Investigation do no t have definitions of “the confiscated person”, but in the interpretation of the law, the meaning of “the confiscated person” can be said to be t he owner, possessor, or custodian of the confiscated object as a subjec t of seizure and search. In addition, there are conflicting views on who can participate in the process of seizure and search warrant execution, but in the case of the investigation stage, it is difficult to say that the right to participate as a person involved in the case is recognized for t he ‘suspect, not the confiscated person’. Comparatively, it is difficult to find a case in which the “suspect” is granted the general right to partic ipate in the investigation process. Article 219 of the Criminal Procedur e Act applies the court’s seizure and search procedures in relation to t he seizure and search procedures of the investigation stage, but it does not fit the nature of the procedure and should be applied according to t he nature of the investigation. Regarding the issue of guaranteeing the right to participate, the Suprem e Court uses the concept of ‘actual confiscated person’ and confirms th e scope of guaranteeing the right to participate. However, due to the u ncertainty of the concept of ‘actual confiscated person’, it is difficult to avoid confusion in the investigation practice because it is difficult to se cure predictability for the practitioners of the investigative agency. The concept of an ambiguous ‘actual confiscated person’ should be recognize d in a limited way only when the actual disposition management authori ty of the information storage medium is confirmed when the investigati ve agency seizes and searches the storage medium of electronic inform ation stored therein from the person in possession of the information st orage medium. It is argued that Internet service users such as e-mail and KakaoTalk are viewed as ‘information subjects’ and the right to par ticipate must be guaranteed as ‘actual confiscated person’. The concept and standard of “information subjects” are unclear, and it is against the current law, which only imposes post-notification. There is no doubt that guaranteeing the right to participate is an impor tant seizure and search procedure that protects the parties subject to e xecution and ensures the appropriateness of the warrant execution proc edure. However, guaranteeing the participation of confiscated persons is difficult to see as our constitutional requirement, and it is necessary to judge by comparing and weighing the extent of discovery of the actual truth, efficient criminal prosecution, and restriction of basic rights. Seiz ure and search procedures are conducted to secure physical evidence re lated to the crime at a relatively early stage of the investigation, and s uch seizure and search often require promptness and secrecy. It may be contrary to the principle of proportionality to recognize the right to p articipate in situations where there is no possibility of privacy protectio n or infringement of property rights of the confiscated person.