디지털 증거의 증거능력 요건 중 무결성 및 동일성에 대하여 - 대법원 2018. 2. 8. 선고 2017도13263 판결 -

Abstract

South Korean Laws regarding search & seizure of digital evidence have been elaborated by the judiciary rather than the legislative. Courts have declared that in terms of collecting digital evidence, it requires some additional admissibility conditions which have to be met via computer forensics method. These additional admissibility conditions include “relevance or relevancy”, “reliability”, “authenticity”, “best evidence rule”, “identity” and “integrity.” Definitions and interpretations of such conditions are not necessarily identical among scholars and practicioners. Partially because digital evidence has peculiar aspects that some degree of verifications have to be made to make it admissible. Any human intervention such as statement by the maker of such digital evidence could be perceived as one of the most vital tool to make the Evidence admissible. However the current case has a slightly different voice on that, because among other things, identity and integrity of digital evidence has to be guaranteed by computer forensics method. Hash value can be one of the most crucial tools to assess such additional conditions. However oftentimes, no matter how careful and competent those who collects evidence via search & seizure method, it could turn out that the hash value of the original and copied evidence would not be identical. That is, some friction happens to the digital evidence due to sensitivity of the Evidence or data storage unit. If such unfortunate event happens, identity of such digital evidence cannot be acknowledged, resulting the effort of collecting such evidence futile. Currently without any statute amending such case, the questions regarding additional admissibility requirements for digital evidence have to wait for a long time to be answered by the legislative.