영업장소 내에서의 수사 목적의 영상촬영과 촬영된 영상물의 증거능력

Abstract

Currently, almost everyone possesses smartphones equipped with built-in camera functions, and it has become common for law enforcement agencies to capture videos for evidence collection or preservation at crime scenes. In particular, investigative agencies actively employ video recording as a investigative technique during vice investigations to confirm the presence of illegal activities within business premises and collect evidence of crimes. However, the necessity of investigation alone does not justify all video recording activities. Investigation within business premises not only plays a role in either dismissing or maintaining prosecution but also has a significant impact on administrative measures against business operators. Therefore, it is crucial to protect the fundamental rights of offenders and to adhere to due process. Omitting the process of clarifying the legal nature of video or photo recording would hinder the proper functioning of legal safeguards including the regulation of compulsory measures and issuance of warrants. Recent decisions from the Supreme Court, while generally adhering to the precedents that avoid intricate questions regarding the legal nature of video recording, are replacing such precedents and providing specific criteria for the legality requirements of recording. In this paper, based on recent legal decisions, I have clarified the nature and legality requirements of video recording conducted for evidentiary purposes in criminal investigations. Firstly, it is crucial to assess the legal nature of video recording based on whether it occurred in an area where a reasonable expectation of privacy is recognized. Furthermore, even if considered a compulsory investigation, the nature of video recording may not be uniform, as it can assume different characteristics based on the specific purpose or circumstances of the recording activity.