임의제출된 정보저장매체에 저장된 전자정보의 증거능력

Abstract

Today’s data storage media such as smart phones, personal computers, etc. are huge containers storing electronic information including the whole world of a person or a company unlike material articles subject to a one-time seizure. The previous Supreme Court en banc Order 2011Mo1839 ruled that, in a case involving a seizure or search effected after a warrant of seizure or of search is issued, the relevancy of electronic information is required, a criminal suspect’s right to participate should be guaranteed, an inventory of the seized electronic information should be given to the criminal suspect. However, the Supreme Court has never ruled based on the legal doctrine with respect to whether the foregoing legal doctrine is likewise applicable in a case where a data storage medium is voluntarily submitted as is the case of a seizure or search effected after a warrant of seizure or of search is issued. Through the subject case, the Supreme Court proclaimed that electronic information stored inside data storage media should be deemed as the separate subject of seizure in consideration of distinct characteristics of data storage media by viewing that the legal principle of the Supreme Court en banc Order 2011Mo1839 regarding a seizure or search of a data storage medium with a warrant of seizure or of search issued is likewise applicable to a seizure of voluntarily submitted articles, corresponding to data storage media. In this regard, the subject case is meaningful in that the Supreme Court determined the requirements for the recognition of electronic information based on the legal doctrine for the first time. Where a data storage medium including both electronic information related to facts of a suspicion of a crime and unrelated thereto or copies thereof are voluntarily submitted to an investigative institution, the entire electronic information cannot be seen to be voluntarily submitted and seized, and a person who submits the data storage medium can designate electronic information or confine the scope thereof. Where the subject and scope of electronic information to be seized in accordance with the intention of a person who voluntarily submits a data storage medium are unclear or unknown, electronic information, which is related to facts of a suspicion of a crime which becomes the motive for seizure in accordance with voluntary submission and is worth at least proving such relevancy, merely becomes subject to seizure. In such a case, electronic information related to the facts constituting a suspicion of a crime includes the facts constituting a suspicion of a crime per se and those which are directly related to a crime identical thereto in terms of basic facts and may be used as indirect or circumstantial evidence to prove the motive for the crime and background leading up to the crime, means and methods of the crime, time and place of the crime. However, such relevancy is merely recognized when specific and individual correlations exist in comprehensive consideration of the contents of the facts constituting a suspicion of a crime that became the motive for seizure according to voluntary submission, the subjects of investigation, circumstances of investigation, voluntary submission process, etc. and cannot be seen to exist on the sole ground of corresponding to the same kind of crime as, or the similar crime to, the facts constituting a suspicion of the crime. Where a third party such as a victim, etc., not a criminal suspect, voluntarily submits a data storage medium that the criminal suspect possesses and manages, even if such voluntary submission and resultant seizure of an investigative institution are legal, more restricted interpretation is required in that electronic information specifically and separately related with the facts constituting a suspicion of a crime which became the motive for voluntary submission can be merely subject to seizure. In the event that an investigative institution, to which a data storage medium or copies thereof were voluntarily submitted, explores, duplicates, and prints out the data storage medium, etc. after moving them to the office, etc. thereof, the investigative institution should follow the principle of warrant and due process by guaranteeing an opportunity to participate in a series of process as such for the party whose articles are seized and searched (hereinafter “the person subject to seizure”) or his/her defense counsel prescribed in Articles 219 and 121 of the Criminal Procedure Act, making and giving an inventory of the seized electronic information, whose details are specified, thereto, and taking appropriate measures to prevent electronic information unrelated to the facts constituting a suspicion of a crime from being arbitrarily duplicated. Furthermore, where a third party such as a victim, etc. voluntarily submits a data storage medium, which belongs to the possession and management of a criminal suspect, without a warrant of seizure and search, the right to participate of the criminal suspect and the procedural right thereof such as delivery of an inventory of the seized electronic information should be guaranteed. If electronic information relevant to a suspicion of a crime is found by accident in the process of legally exploring electronic information relevant to facts constituting a suspicion of a crime before a seizure or search of electronic information is completed, an investigative institution should discontinue further exploration thereof, and, only when a warrant of seizure or of search is issued from the court with regard to the facts constituting a separate crime, the investigative institution can legally seize or search such information. Therefore, any evidence acquired by an investigative institution without a warrant of seizure or of search in relation to electronic information beyond the scope of electronic information subject to seizure in a data storage medium voluntarily submitted corresponds to illegally obtained evidence, and thus illegality thereof cannot be seen to be healed even if a warrant of seizure or of search is issued ex post facto from the court or a criminal defendant or his/her defense counsel agrees to use it as evidence for being guilty.