수사기관의 범행현장 등 촬영의 적법성 판단 기준-대상판결: 대법원 2023. 4. 27. 선고 2018도8161 판결

Abstract

The use of photography and videos by investigative institution to secure evidence has become an essential investigative method. However, this method raises concerns regarding the infringement on fundamental rights such as portrait rights, privacy, etc., leading to debates over its legal nature and permissible conditions. The Supreme Court reaffirmed the existing legal principle that warrantless video surveillance could be permitted if certain conditions (the immediacy of the offense, the necessity and urgency of evidence preservation, and the reasonableness of the surveillance method) are met. The subject case also established new criteria for determining the reasonableness of the surveillance method, including whether the investigative institution entered the location by customary means and whether the location and subject of surveillance fall within an area where a reasonable expectation of privacy is acknowledged. The Supreme Court adopted the legal principle of reasonable expectations of privacy recognized by the United States Supreme Court. If an investigative institution enters a location accessible to the public by customary means and verifies illegal acts without infringing on the reasonable expectation of privacy, such serveillance could be considered permissible as a voluntary investigation. However, to protect citizens’ fundamental rights and prevent the abuse of investigative powers, rigorously assessing whether the surveillance was conducted by generally acceptable and reasonable methods is crucial. According to the Supreme Court decision, the reasonableness of the surveillance method should be determined based on whether the investigative institution entered the location by customary means and whether the location and subject of the surveillance fall within an area where a reasonable expectation of privacy is acknowledged. Since the concrete meaning and scope of the reasonable expectation of privacy are abstract, they need to be clarified. If the investigative institution’s surveillance infringes on the reasonable expectation of privacy, it can be deemed unlawful. Specific criteria for this assessment may include: ① the openness of the location and subject, ② the technology used in surveillance, ③ the duration of the surveillance, and ④ the content and scope of the information collected.