통신제한조치에 관한 비교법적 고찰 - 독일법과의 비교를 중심으로 -

Abstract

In today’s highly developed communication technology, the need for information protection for communication secrecy is increasing more than ever. In addition, the need to collect information for coping with and preventing risk factors such as crime and terror that threatens the national security and public order in various forms and motives is also increasing more than ever. However, it is questionable whether the responses of the current Communications Secret Protection Act and the Counter Terrorism Act are relatively harmoniously functioning between the needs of the two. Therefore, in this paper, a comparative study was conducted focusing on Germany. In particular, in the case of Germany, the communication surveillance system under the German 「Criminal Procedure Act」 based on discussions on basic laws related to the protection of communication secrets and warrantism in Germany, with the awareness that the structure of our constitutional and administrative law on communication secrecy is similar to that of us. And the 「Act on the Restriction of Confidentiality of Correspondence, Mail and Communication (Gesetz zur Beschränkung des Brief-, Post-und Fernmeldegeheimnisses, G-10)」, and the 「Communication Act」 and the contents of the enforcement decree. In relation to the interception requirements under the Protection of Communications Secrets Act, there must be “sufficient reason to suspect that a crime has been planned, executed, or has been executed”. In the case of arrest or detention under Article 200-2 (1) and 201 (1) of the Criminal Procedure Act, the “Sufficient Reasons” under the 「Communication Confidentiality Protection Act」, and 「Considerable Reasons for Suspicion」 and 「Criminal Procedure Act」 Article 215. In the case of seizure and search under Article 1, it is necessary to determine the degree of the seizure and search by comparing them with the ‘suspectable circumstances’. Regarding the specific interpretation of the ‘reasonable reason’, it is necessary to consider the discussions in Articles 100c (interception of housing) and Article 100f (interception of other than housing) of the German Criminal Procedure Act. In the above provisions, the German Criminal Procedure Act requires ‘facts that serve as the basis for criminal charges’. And This is specified as ‘if there is a fact of another suspect’ or ‘if the statement of another person is judged to be material’. Therefore, even in the interpretation of the “sufficient reasons” in Article 5 of the “Protection of Communications Secrets Act”, it seems more consistent with the constitutional purpose of protecting communications secrets to be based on these facts. Regarding the period, the period related to enforcement is stipulated in Article 6 of the 「Communication Confidentiality Protection Act」. Currently, it does not exceed 2 months, and it is stipulated that an extension is possible within the range of 2 months by attaching explanatory data. In the case of Germany, tapping is stipulated as 3 months and one extension is possible. Rather, according to the current “Communication Confidentiality Protection Act,” there is no limit on the number of extensions instead of two months, so limiting this seems more urgent from the perspective of “minimizing the restriction of basic rights”. On the other hand, in Germany, various periods are set, such as 6 months for technical measures for mobile devices (6 months for extension), and 1 month for online search or interception outside of residence (a total of 6 months for 1 month for extension). As there is, in our case, it is necessary to set various periods according to the type of communication restriction measures