‘실질적 피압수자’ 개념에 대한 비판적 검토 (대법원 2021. 11. 18. 선고 2016도348 전원합의체 판결을 중심으로)

Abstract

In principle, the court denies the suspect’s right to participate in the search and seizure of digital evidence. However, recently, in exceptional cases such as the suspect exclusively manages and disposes of the information within the media, the court established the legal principle that the suspect can be guaranteed his right to participate as “the actual confiscated person”. Article 121 of the Act, which is applied to investigation stage mutatis mutandis by Article 219 of the Act, stipulates the right of participation of the parties, and the court interprets this as the provision of the right of participation of the confiscated person. But from a historical review of the law, it should be seen as a regulation that guarantees the suspect’s right to participate. At the time of the enactment of the Criminal Procedure Act, legislators were concerned that the investigative agency, which had the power of compulsory disposition along with the abolition of the preliminary examination system, would abuse its authority or be used as a political tool. Therefore they prepared legislative device to strengthen surveillance through party-oriented procedures in the investigation stage. Article 121 which is applied mutatis mutandis by Article 219 of the Act, is that. However, search and seizure usually take place at the beginning of the investigation stage. At this time, if the suspect’s right to participate is guaranteed, there is a very high risk that the suspect, who becomes aware of the progress of the investigation, will destroy other evidence. In particular, considering the fact that digital evidence is very vulnerable to alteration and deletion, this Article can be a great threat to the principle of the discovery of substantive truth, and this kinds of threat cannot be overlooked. But this problem should make its breakthrough by seeking legislative improvement not by legal interpretations that go beyond the literal limits of legal text. Because it is not only the creation of the law by the judges, but also hinders the harmonious interpretation of the entire legal regulation. Actually the most practical way to ensure the right to participation is to guarantee the participation rights of the person who exclusively manages and disposes of the information within the media, not the suspect. Considering the judicial environment that has changed from the time the law was enacted and the secrecy principle in investigations, it seems that it is time to delete the provisions on the application of the suspect’s right to participate in the investigation stage. And the right to participate by those who have the right to exclusively manages and disposes of the information need to be legislated.