역외 압수·수색 수사에 관한 한일 최고법원판례 비교연구

Abstract

Due to the development of Internet technology, it is not unfamiliar that crime-related information is stored on overseas servers. There was a Supreme Court ruling in 2017 against the seizure and search of these overseas servers. According to our Supreme Court, the seizure and search of parts related to the alleged crime is carried out within the minimum range necessary for smooth and proper execution of the seizure and search warrants, and physical coercion recognized as justifiable in terms of social norms. It is permitted as an act of disposition, and it is said that it falls under the necessary disposition stipulated in Article 120 Paragraph 1 of the Criminal Procedure Act. This affirms the seizure and search of remote locations, saying that even if the storage medium in the remote location is outside the country, the situation will not be different. However, if the effect of a seizure/search warrant issued in Korea permits execution on an overseas server, ① that the effect of the domestic warrant will extend to overseas; ② The fact that it exceeds the scope of the expected compulsory disposition of material and causes interference with the right of defense, ③ In the case of an overseas server, it is difficult to accurately specify an exact specification is likely to infringe. On the other hand, in 2021, the Supreme Court of Japan issued a ruling allowing remote seizures and searches abroad. In the case of Korea and Japan, there is a difference due to the seriousness of the crime, so it is difficult to compare and review on the same line. In this study, the necessity of offshore seizure and search in Korea and the content of legislative arguments regarding offshore seizure and search are reviewed, and the necessary matters for Korean legislation are presented from the current Japanese legislation, Choi Jae-rei and the February 1, 3, year decision. wanted to In the revision of the Japanese Criminal Procedure Act in 2011, remote access was introduced as a stipulated regulation. Afterwards, in the case dealt with by the Japan Supreme Court's decision on February 1, 3, Reiwa, the investigators took note that, in accordance with Article 32 of the European Treaty on the Prevention of Cybercrime, remote access can be conducted with the voluntary consent of the suspects. It proceeded by requesting arbitrary consent from the suspects. However, in the decision made on February 1, 3, Lee Wa, the suspects and related persons came as part of a compulsory disposition, and that was the issue. Accordingly, the Supreme Court of Japan divided the issues into whether there was voluntary consent and whether remote seizures and searches were permissible, and a judicial decision was made. In the end, the Supreme Court of Japan holds that even if arbitrariness is denied, it is legal as a compulsory investigation, and the contents of the Japanese Criminal Procedure Act allow remote seizure and search not only domestically but also overseas. It was judged that offshore seizures and searches could be permitted on a limited basis (limited to the Contracting States of the European Convention on the Prevention of Cybercrime). Accordingly, based on the precedents of the Supreme Courts of both countries and the academic opinion, the relevant laws in Korea include ① stipulation of offshore seizure and search, ② specification of arbitrariness requirements, ③ response to cases where the location of the server is not specified, ④ comprehensive data on offshore data Legislative considerations such as establishment of seizure/search and control agencies, and efforts to actively join and conclude treaties for effective response to transboundary cybercrime were presented. Through this, in order to effectively respond to transboundary cybercrimes, the legalization of remote seizure and search, which is claimed to be necessary in practice, and the clear scope and control agency are proposed to achieve the purpose of criminal investigation, to protect the suspect's right to defend against other countries. We want to contribute to solving difficulties such as sovereignty infringement.