임의제출된 휴대폰 내 전자정보의 압수범위 및 피압수자의 참여권 보장 - 대법원 2021. 11. 18. 선고 2016도348 판결 -

Abstract

This case is about the admissible evidence problem that the accused was reported by the injured right after doing illegal filming in 2014. As a result, the cellular phone was voluntarily submitted, but the investigation agency found evidence of the similar illegal filming crime of 2013 and secured it without a warrant. In this case, the most significant evidence to prove illegal filming by the accused is the video file and others saved in the cellular phone, and the injured who was the third party submitted that cellular phone to the investigation agency. To be acknowledged as the admissible evidence of the video file and others, it should be legal for the investigation agency to confiscate it by voluntary submission. For this, the following two points should review legally - First, is it illegal the warrantless seizure of crime evidence in 2013 because it is a pretextual seizure? Second, is it legitimate not to give the participation opportunity to the accused during the 2013 crime evidence seizure? In this case it was illegal about the first point because of pretextual seizure. On the second point, it instructed the participation right should be warranted to the accused during the voluntary submission process. However, there was no judgment whether the investigation agency violated the accused’s participation right or not. During the search and seizure of storage information by the voluntary submission of cellular phones, only relative storage information could be seizure by the principle of selective seizure. In particular, when the third party voluntarily submitted the cellular phone, the submission scope of the stored information should be limited only to the evidence related to the case under the investigation. Therefore, in this case, the seizure scope should be limited to the case in 2014 that the injured reported. It means that the disposition of the investigation agency is illegal because it needs a separate pre-search and seizure warrant for the 2013 crime. Furthermore, it is unlawful that there was no participation opportunity for the accused, even though they seized the evidence for the 2013 crime without a warrant. This case is meaningful in that it clearly stated the applying of selective seizure principle and the participation right of the accused like the warrant of seizure, during the seizure process of stored electronic information by the cellular phone voluntary submission. For determining the scope of selective seizure, if the submitter’s intention is not clear or not to know, this case expanded the scope of ‘relevance’ like the seizure of warrant- and it should reconsider. The reason why the seizure by the voluntary submission, which is the kind of the compulsory disposition, could be legitimate without the warrant by the court if the submitter’s spontaneous intention exits, so the scope of the seizure should follow the intention of the submitter. Moreover, when the intention is not clear, it should be strictly interpreted for the advantage of the submitter, and it is only seized the crime under the investigation.