개정 형사소송법 제313조의 해석과 입법 개선

Abstract

In accordance with the digitalization of daily conduct and the progression of "Ubiquitous environment" and "Internet of Things," an increasing number of legal actions has been recorded and preserved in the form of electronic information. As such, digital information has come to play a fundamental role as evidence in the verification process of trials. Nonetheless, Criminal Procedure as it stands, with its limited regulation and coverage of search and seizure processes, lacks the capacity to accommodate this type of information and thus requires substantial and comprehensive revisions and amendments. This holds particularly true for information derived under private and unofficial/informal circumstances which often aren't conducive to documentation required to fulfill the established applicability and eligibility standards. To address this issue, the government has enacted regulations regarding evidence presentation in Criminal Procedure Law Article 313, Paragraph 1, and, in Paragraph 2 of the same Article, established the applicability and evidentiary power of forensic and other objective data. Nonetheless, certain lingering issues and ambiguity must also be resolved regarding aspects ranging from the scope of the abovementioned Article and the establishment / requisite level of authenticity to the methods of submitting the evidence as proof. The purpose of the paper at hand is to assess the aforementioned amendments in conjunction to applicable precedents and scholarly debates and argues specifically for the need to 1) clarify the distinction between affidavits drafted by self and those drafted by a 3rd party (Paragraph 1 currently lacks such differentiation) and to limit the paragraph's applicability to "affidavit drafted by self" (defendant and non-defendants alike), 2) relocate the exception clause in Paragraph 1 to Paragraph 2, effectively separating the clause pertains specifically to "affidavit drafted by third-parties" and therefore resolving potential conflicts between the original Paragraph 1 as a whole and this particular clause regarding the abovementioned exception clause 3) add a third paragraph to limit the applicability of electronic information (i.e. forensic data and results) to those that conform specifically to the format provided by Paragraph 1, 4) guarantee the ability of defendants and/or his attorney to refute specifically the affidavits presented by third-parties.