전자정보의 압수수색절차에서 참여권의 범위와 한계 - 대법원 2015. 7. 16.자 2011모1839 전원합의체 결정을 중심으로 -

Abstract

In the procedure of seizure and search of general objects, there is no great problem with respect to the participation rights of those subject to seizure. In the process of seizing and searching information storage media or electronic information, however, participation rights of those subject to seizure becomes an absolute standard to judge the legality of procedure of seizure and search. Such a situation is very well shown recently in the Supreme Court's 2011Mo1839 full bench decision as of July 16, 2015. The scope to guarantee participation rights of those subject to seizure in the procedure of seizure and search of information storage media or electronic information must be acknowledged in stages such as sealing, duplication, imaging of information storage media, taking-out to the outside at the place where such information storage media exist, and search, duplication, printing and re-sealing of electronic information after taking them to the outside. And participation rights should also be guaranteed in the stages of unsealing and re-sealing and searching and printing of electronic information in a third place after taking information storage media to the outside. However, it may be all right not to guarantee participation rights in the stage of analysing printed electronic information or making them evidence based on the analysis. And there is no need to give a guarantee of participation rights in case investigation agency notified those subject to seizure of participation rights but they relinquished their rights. As participation rights of those subject to seizure was guaranteed in the stage of duplicating information storage media by taking it to the outside as an exceptional situation at the time of execution of the first seizure and search warrant in deciding objects, regarding it as lawful is considered appropriate. However, there exists a contradiction in the logic that the legitimate first disposition must be cancelled as second and third dispositions are unlawful from the premise that the duration of seizure and search specified in the first warrant has expired because the logic is against the purpose of the Supreme Court’s 2009Mo1190 full bench decision as of May 26, 2011 that considers printing or duplication of electronic information as part of execution of seizure and search warrant collectively. The logic that execution of the second warrant without guaranteeing participation rights of those subject to seizure in the course of execution is considered appropriate. To guarantee participation rights in the procedure of seizure and search of information storage media, making regulations on the participation rights a stipulation in the Paragraph 5 of the Article 106 of our Criminal Procedure Code by referring to the Criminal Procedure Code of France, previous full bench decision of the Supreme Court, practical work practices etc.