영장이 없는 상태에서 발견한 증거의 보존을 담보해주는 방안-영장주의 예외와 증거인멸죄 활용을 중심으로-

Abstract

How to secure evidences found in execution of warrant, voluntary investigation, chase investigation and the like by accident is long problem with investigation agency. Last year, Supreme Court of Korea suggested a standard that additional inquiry (search) should be discontinued and new warrant should be issued for an evidence found by chance. However, whether the evidence will be preserved in intact form until new warrant is issued cannot be guaranteed. Post warrant, in other words, urgent seizure‧search can be considered but it may not be applied to unusual case evidence. Voluntary submission is of no use if the other party refuses it. Closure of place and restriction of entrance that can be done during execution of warranty are not suitable means because they are allowed when they are needed to secure a piece of evidence written in a warrant. It is necessary to think about indirect way to preserve an evidence in order to overcome above mentioned limit, which uses threatening effect of punishment. Afore mentioned way is for investigation agency to specify that an evidence is reviewed for request for warrant and warn that anyone who attempts to destroy it will be punished. The way has limits that it is not effective in destroying evidence of case or in third party destroying evidence by having criminal destroy it. However, the way is useful in that it makes third party hesitate to destroy evidence or it helps prove negligence even if third party destroyed evidence.