The Study of Acceptability of Search and Confiscation for another Digital EVIDENCE

Abstract

The issue with digital evidence has been discussed continuously in Korea because its unique characteristics such as independence, invisibility, mixture. In this sense, question is that whether or not the principles of traditional Criminal Procedure Act can make application to digital evidence. This thesis focus on investigative agency that cope with seizing digital information that is not related to crime. When investigative agency seize digital information, most of them are not original evidence but copied evidence according to article 106 of Criminal Procedure Act. Thus, this study examines whether or not the investigative agency should get search and confiscation regarding another digital evidence despite having copied image evidence. This thesis points out that precedent cases that judge investigative agency should get another search and confiscation in order to continue investigation should be criticized because it can hinder dynamics of investigation. However, in the case of independent search and confiscation, abuse of authority can concern. So, the thesis insists jurisdiction should adopt limited search and confiscation against dangerous power which harm national security. The digital evidence holds unique features like media independence, information with no shape, easy replication, vulnerability, massiveness and network relevance but most regulations in the current criminal evidence act do not presume such digital evidence, creating a vacuum in the legal regulations. The relevant regulations in the current criminal evidence act should be interpreted by considering the feature of the digital evidence. However, the interpretation has limitations in filling the vacuum in the criminal act with established principles in prohibiting the guessing and implementing strict interpretation. Therefore, the criminal evidence act should be amended to cover digital evidence. All the evidence requires sincerity but digital evidence additionally requires unique prerequisites like the identity with the original version, integrity and reliability. Judicial precedents on how to prove such prerequisites have been gradually accumulated but in the long term, specific rules should be clearly developed for law enforcement agencies to follow, and the customs or legislation amendment is required that can accept or guess that the prerequisites above are satisfied if the rules are proven to be observed.