컴퓨터 전자기록에 대한 대물적 강제처분의 해석론적 쟁점

Abstract

Since the democratization of Korea, the reform of its criminal procedure has strengthened procedural rights of criminal suspects and defendants. The Korean judiciary has made progressive decisions for such rights. Compared with arrest, detention, and police interrogation, however, the requirement of legitimate search-and-seizure has not been much scrutinized. This Article is to review major issues regarding the requirements of legitimate search-and-seizure warrant, focusing on searches and seizures of computer data. This Article attempts to answer the following questions which are not familiar issues in the Korean jurisprudence: Can computer data be classified as an object of seizure even though the Criminal Procedure Code prescribes the object as a "tangible thing"?; Can copying computer data be included in the category of seizure?; Which is the place where searches of computer data should be specified in a warrant, the place where computer is seized or the place where law enforcement authorities actually start to search computer data?; Is the search strategy or protocol required to be specifically explained in a warrant?; Are law enforcement authorities allowed to seize all of the "intermingled" computer data including irrelevant data for off-site review without a separate warrant?; Can law enforcement authorities open the files encrypted by a suspect or recover the hard drive formatted by a suspect?; Are "saved" e-mails regulated by the Criminal Procedure Code or by the Act for Communication Secrecy Protection?Then this Article concludes that more judicial control is necessary to prevent the "general warrant" for searches and seizure of compute data; The object, scope and method of searches and seizures should be thoroughly scrutinized when law enforcement authorities apply for a warrant and courts review it.