수색 대상 컴퓨터를 이용한 원격 압수수색의쟁점과 입법론

Abstract

Digital evidence is being saved, transmitted, and processed via network beyond the wall of time, space and borders. Therefore, it often occurs that computer system is approached through the network for the purpose of obtaining digital evidence that has evidential value. While search and seizure has been confined to the objects that are written on the venues of the search and seizure warrants, the objective of search and seizure cannot be accomplished anymore under the current online network system only with the search and seizure of the computer that is placed on the spot. In reality, the number of long-distance search and seizure is increasing through the network of the remote searching computer in order to gain information and evidence for investigation cases, because the network environment is expanding and digital evidence is also growing rapidly. However, the legal issues about the search and seizure of the long-distance computer is not yet defined clearly and various problems are raised with respect to its admissibility, methods, limits and counter measures against privacy invasion. Considering the long-distance search and seizure is required very often in practice and the overseas legislations on it, legislative institutionalization is very necessary. Nevertheless, prudent legislative approach and various considerations are prioritized because digital evidence in the long-distance server has abundant privacy information and the public have very high expectation of privacy protection. Especially, the criminal evidential principles of search and seizure should be fully obeyed and there should be restrictions in regard to admissibility, the scope of search. Additionally, the method of search and seizure should be limited to the ordinary log-in way of the user, and the participation and exclusion of the person under search and seizure should be considered for the purpose of obtaining transparency. Through these, prevention of human-right invasion, protection of privacy, and the establishment of efficient investigative system for criminal justice will be realized.