디지털증거의 압수·수색과 절차적 진실 - 대법원 2015.07.16 선고 2011모1839 전원합의체 결정 -

Abstract

The validity of evidence resulting from substantial truth and procedural truth, and the conflict between these truths is an issue generating substantial discussion in Korea, particularly with reference to the increase in the search and seizure of digital evidence. In the last 6 years, claims of the infringement of human rights when being arrested have increased significantly, resulting in a decrease in the number of arrests made, and an increase in the search and seizure of evidence so as to ensure that any arrests made are just. With technological advances being made every day, and technology becoming an ever more prominent part of everyday life, it is natural that digital evidence and data is more important now than it has ever been in the past. On a number of occasions in recent years, during the search and seizure of digital data, prosecutors have unintentionally identified or discovered evidence of a second crime outside of that being investigated. Following the tenets of substantial truth, the evidence might be argued to be valid in a resulting investigation of the second crime. On the other hand, according to procedural truth, and as has been ruled in the Supreme Court, such evidence has been deemed to be inadmissible in court due to a lack of a warrant for the investigation of that specific crime at the time the evidence was found. In line with the fruit of the poisonous tree doctrine, the discovery of such evidence during an investigation has the potential to not only hinder an investigation of the second crime, but also derail the original investigation due to an, albeit unintentionally, illegal and unwarranted search. The participation of a lawyer from the company being investigated in the seizure and search procedure of electronic information or information storage devices is an issue worthy of discussion in developing fairer and more effective procedures for both those investigating and being investigated. Having an in-house lawyer present and participating in the seizure of data might ensure that correct procedures are followed, and that searches remain within the boundaries of the warrant issued for the seizure. This paper also argues that such participation is not only necessary for the original seizure of data, but also for the creation of any copies of the data being made throughout the investigation, so as to ensure the legality of any seizure and analysis of data. A previous investigation found that the majority of in-house lawyers in companies were not well-informed of the correct procedure to be followed in the case of the seizure of data from their company; thus, often leading to the absence of participation which lies at the heart of this issue. In South Korea, the issue of urgency in the seizure of data relating to a crime has also been raised as the reason for the regular omission of participation. While urgency may certainly play a factor in the effective seizure of data, a Supreme Court judge declared, last year, that any seizure of data requires a warrant specific to the crime to which the data relates. It should be noted, that the prosecution has decried this decision, arguing that the application for a second warrant would counter the effectiveness of urgent data collection and allow those subject to the seizure of the newly found evidence to cover it up or get rid of it before the new warrant is approved. This paper argues for the need for the development and creation of clear guidelines related to the procedures to be followed by in-house lawyers in the event of a seizure of data, and to expressly inform companies about said guidelines so as to ensure the timely, effective, and legal seizure of data in all cases.