디지털 증거의 압수․수색에 관한 소고

Abstract

We have reviewed several issues related to the seizure and search of digital evidence that have been revealed through object determination so far. (the question of the objectivity of seizure search, the requirements of seizure search and scope of execution. problems with the method, the time of termination of seizure and search, the right of participation of the suspects) This problem is not new but it is a problem that has been discussed in academia early on. The key to such discussion is the legitimacy of digital seizure, resulting in the restriction and control of seizure of digital evidence. It is believed that the target decision provides a reasonable basis for these areas. In particular, when the search for digital evidence increases, the storage medium itself is taken out directly to the outside of the investigating agency office in the form of hard copy or imaging, and ensuring the right of participant's participation in the information retrieval search process is a reasonable interpretation Respectively. (On the relationship between substantive truth discovery and due process principles) This is because the Criminal Procedure Law has various procedural restrictions, in particular, the right to participate in the execution of a search warrant. On the other hand, the conflict and harmonious interpretation of the factual discovery and the due process principle which can be called the purpose or ideology pursued by the Criminal Procedure Act is not limited to the digital evidence, but the procedure for preparing the criminal procedure and interpreting the criminal procedure law Right legitimacy is as important as the discovery of substantive truth. In order to establish these values, it is necessary to legislate digital evidence as a subject of seizure and search, as discussed in the main text. In order to protect the confidentiality of privacy, the right of self-determination of information, and the right to privacy, which can occur through the seizure and search of digital evidence, It is not enough to effectively prevent infringement of property rights. Therefore, it is necessary to legislate the legal nature of the process of retrieving, outputting and copying related information of the investigation agency. However, such legislation should be more detailed and elaborate, reflecting the inherent characteristics of digital evidence.