임의제출에 의한 수사기관의 전자정보 압수와 관련한 제 문제의 검토 - 대상판례: 대법원 2021. 11. 18. 선고 2016도348 전원합의체 판결 및 대법원 2022. 1. 27. 선고 2021도11170 판결

Abstract

As the number of cases of search & seizure of electronic information storage media such as mobile phones by police or other investigative agencies for the purpose of obtaining electronic information increases, various issues arise due to the characteristics of electronic information that are different from those of ordinary seizure and search target. After issues related to electronic information emerged through the lower court cases, the Supreme Court in 2011 first stipulated that taking out and imaging storage media such as computers at the execution site of search & seizure is only possible when it is unavoidable, and printing and copying only electronic information related to the alleged facts on the spot. so prior to the establishment of Article 106 (3) of the Criminal Procedure Act, it was intended to implement the principle of warrant principle in the process of acquiring electronic information. since then, cases have been accumulated that have resolved issues related. for example, in the process of searching for electronic information, the participation of the confiscated person and the lawyer, and the right to receive a detailed list of the confiscated electronic information are clearly confirmed to ensure the legitimacy of the enforcement procedure, and when other criminal charges discovered by chance in the process of searching for electronic information, a separate search & seizure warrant was required for the seizure of related electronic information. Meanwhile, investigative agencies have widely used the seizure by voluntary submission(consent seizure) of Article 218 of the Act for obtaining electronic information due to practical conveniences in which a warrant is unnecessary. the problem is that, unlike the example of a warrant, in the case of voluntary submission, the range of electronic information accessible to the investigative agency in the submitted storage medium is not clearly limited, and it is unclear whether procedural devices such as the right to participate in the search for electronic information and the issuance of a detailed list of confiscated electronic information should be equally applied. the main and comparative cases in this article have meaning by resolving the above controversy related to the voluntary submission of electronic information. Article 106 (3) of the Act applies even when voluntary submission is made, so when the intention of the voluntary submitter is not confirmed, seizure is limited to electronic information related to the alleged facts, and the procedures such as the participation of the confiscated person, etc. must be followed. However, despite series of precedent cases, there are still areas that need to be reviewed. ① If the voluntary submitter expresses his intention to comprehensively submit the electronic information stored in the storage medium, can the investigative agency access the electronic information without restriction beyond its relevance to the alleged fact? in addition, in the case of voluntary submission by a third party who is not the subject of electronic information, ② who has the authority to arbitrarily submit electronic information and who participates in the enforcement process such as electronic information search or to whom is a confiscation list issued? in this case ③ does the investigative agency have to confirm the intention of a separate voluntary submission from the subject of the information or obtain a warrant for seizure in order to search for electronic information? and relating to controversy caused by lower court precedents related to seizure by Article 216, 217 of the Act, ④ in order to confirm the voluntary submission intention, can the investigative agency's duty to notify in advance about the meaning and effect of voluntary submission and its refusal right be acknowledged? In this article, the author proceeded with a discussion centering on the above points in relation to main and comparative cases. in conclusion, as pointed out in the main case, the effect of seizure by voluntary submission is the same as that of ordinary seizure, except for acquisition of possession. so, the warrant principle is valid as it is, so even if the submitter comprehensively submitted the electronic information, the electronic information that the investigative agency can acquire should be limited to the range related to the alleged fact. In addition, the subject of privacy limited by seizure, that is, the subject to which electronic information belongs, has the right to voluntarily submission, but as can be seen in the main and comparative cases, there are exceptional cases where a third party has the right to submit and participate in enforcement procedures to the extent that risks due to privacy waiver are expected. and existing cases observe the specific circumstances of voluntary submission as a whole to determine the discretion of the intention to submit, and do not recognize the duty of investigative agency to notify the right to refuse voluntary submission, and the majority opinion support this view point of existing cases. however, at least in a compelling situation such as seizure by Article 216, 217 of the Act, the duty of investigative agency to notify in advance the meaning and effect of the voluntary submission and the refusal right can be sufficiently derived from the interpretation of the existing law.