형사절차에서 전자정보의 탐색 및 압수

Abstract

Electronic information stores a huge amount of information even on very small physical devices. Therefore, there is a risk of comprehensive seizure and search execution. In preparation for this, it is stipulated in laws and regulations such as the Criminal Procedure Act. In principle, when information(electronic information) stored in an data storage media is confiscated, the scope of electronic information related to criminal facts shall be determined and printed or reproduced. In addition, if it is impossible to execute the seizure method due to output or reproduction, or if it is significantly difficult to achieve the purpose of seizure, search, or verification, electronic information contained in the data storage media may be all reproduced and the copy(imaging) may be taken to a location other than the data storage media. Selective seizure is to prevent the risk of comprehensive seizure and search execution beyond the scope of relevance. Therefore, even when electronic information is all reproduced or the data storage media is taken out and searched and confiscated from the outside, it should be limited to relevant parts. In other words, if the seizure of electronic information is intended to be carried out without distinction, such as the place of execution of the warrant or an external place, the scope thereof must be determined (selective seizure). The reason is that comprehensive seizure or overall seizure of electronic information violates the principle of specificity in seizure and search. In addition, problems such as abuse of investigative power and separate investigations may arise that are contrary to the principle of proportionality. In addition, the seizure and search of electronic information should be limited to information that is related to the fact of criminal charges(objective relevance, personal relevance). In the event of a violation of the requirements for relevance, the admissibility of evidence must be denied as evidence illegally collected as a violation of the principle of due process and rule of warrant. Therefore, in principle, electronic information unrelated to the fact of criminal charges should be discarded. If an investigative agency accidentally finds electronic information related to a separate criminal charge in the process of legally searching for electronic information, the search should be stopped. In addition, a separate seizure and search warrant must be issued by the court for separate evidence in order to conduct a seizure and search. The participation of the seized and searched parties is for selective seizure, and it is also to guarantee defense rights, prohibit access and copying of information storage media, and to prevent distortion, abuse, and arbitrary copying or copying of electronic information. Therefore, even in voluntary submission by a third party, the subject of seizure should be regarded as a suspect. Therefore, it would be said that the right to participate belongs to the suspect.