실질적 피압수자 권리 보장과 수사의 밀행성 유지를 위한 절충안 제시

Abstract

It's a terrible feeling to have your data stored in the cloud, unknowingly accessed by law enforcement, and your sensitive data seized. Search and seizure in the digital age is more likely to violate an individual's right to privacy than a search and seizure of a person's residence. In order to put a stop to this practice, the Supreme Court of Korea created the concept of 'actual subjects' to ensure the right of the subjects to participate in the search and seizure of data stored by business operators. The Supreme Court's decision is certainly an appropriate way to protect individual rights to data, and it makes sense in an ever-evolving digital age. However, the Supreme Court's decision has been criticized by some as legislation by the judiciary, and there are concerns that providing prior notice to suspects of their right to participate may run counter to the principle of investigative secrecy. While agreeing that the Supreme Court's decision is in the right direction, this article criticizes the Supreme Court's decision based on the interpretation theory of the current law and argues that, as a legislative theory to maintain the secrecy of the investigation while ensuring the rights of the actual subject, it is necessary to (1) define the specific scope of the subject and the right to participate, (2) introduce a custody order to prevent the destruction of evidence of the actual subject, (3) prepare complementary measures in case the actual subject fails to participate, and (4) introduce a system that requires the information subject to be notified of the seizure after the seizure.