압수･수색영장의 ʻ원본제시ʼ에 관한 비판적 검토

Abstract

Presentation of search･seizure warrant guarantees fundamental rights and property rights of the targets, ensuring their opportunities such as quasi-appeal. It also enables warrant executors to secure adequacy of in rem compulsory measures. In terms of the method of presenting search･seizure warrant, however, ‘face-to-face meeting, presentation of the original’ or ‘untact, indirect presentation’ of warrant does not restrict rights of targets or cause a problem. And presentation of warrant by fax or email does not allow investigation agencies to limit or deprive of the rights of targets by making a detour or slipping from the grip of the doctrine of warrants. Judgment that regards presentation of warrant by fax (or presentation of warrant by email) same as nonexistence of presentation of warrant is in conflict with precedents of the Supreme Court that admit a copied document as a document or the Framework Act on Electronic Documents and Electronic Transactions that accepts an electronic document as a document. It is also lacking in rationality as it overlooks development of electronic and communication devices and singularity of the method of search･seizure of electronic information. Therefore, it is necessary to find legal basis of the method of electronic presentation of search･seizure warrant in the Criminal Procedure Act, but the court needs to changes its attitude for interpreting･applying relevant regulations of the Criminal Procedure Act before a legal basis is prepared.