디지털증거의 압수·수색 영장 사본제시에 따른 문제점과 개선 방안에 대한 고찰

Abstract

With regard to showing a copy of a confiscation warrant, there are problems with the limitation of showing an original document in the reality of an investigation. There is also a lack of legislation to check whether the warrant has been forged or not and identify those who execute the ones getting confiscated. The effect of the original warrant to be submitted later can also result as a problem. Especially in case of search and seizure warrant for SNS content and e-mail, those who submit the data(those who keep the information) are different from those who own the data(subjects of fundamental rights), which makes it extremely difficult to check whether the warrant, which is sent via a facsimile equipment, have been forged or lack proper identification from those who are executing. In addition, the notice issue occurs with those who own the data(subjects of fundamental rights). All of these confirm the fact that there is much controversy over the old application in legal principles of warrant doctrines. The investigator believes that a notice of search and seizure should be applied both to those who submit the data(those who keep the information) and those who own the data(subjects of fundamental rights). This is in accordance to the principles of warrant doctrines and due process described in the constitution on the premise of legislation for evidence preservation on the part of those who submit the data(those who keep the information). Based on these findings, the study made the following proposals: first, the introduction of an Information Warrant system is ultimately required. During the transition before its introduction, the old certified e-document system, whose cryptological security is guaranteed, should be used to issue a confiscation warrant instead of facsimile equipment thus securing legal force proving the confiscation warrant has not been forged. Secondly, the study proposed the revision of the Criminal Procedure Code thus enforcing a notice of obligation rather than the application of the Protection of Communications Secrets Act to the owners of the SNS or e-mail accounts. A specific method of notice proposed in the study involved the expansion of the application scope of the National Portal for Criminal Law already in place to give notice to those who own the data(subjects of fundamental rights) on the premise of evidence preservation procedures secured in advance. Making use of these alternatives, putting the legislation process on a fast track is needed to resolve the difficulties found in the work conducted by investigative agencies as well as to guarantee the fundamental rights of people.