전기통신사업자 보관 몰수 대상 정보의 압수실태 및 개선방안

Abstract

As the Criminal Procedure Act incorporates a principle of ‘print-out and copy’, telecommunications business operator may still retain cyber contraband such as chid pornography and corporate secret even after search and seizure. This is because, by the Act, neither can law enforcement agencies delete, nor seize the contents subject to confiscation. This paper explores legal and institutional improvements to tackle such dilemma in relation to seizure of electronic information subject to confiscation. From institutional framework, ‘Preservation Request for Seized Goods’ is discussed with a view to prevent telecommunications business operator from accessing information of confiscation. ‘Confiscation Prior to Prosecution’ is also proposed with regard to virtual currency. In addition, this paper tries to interpretate an act of distribution of illegal contents as ‘danger’ so as to discard information of confiscation at the phase of police investigation, provided that the condition meets relevant articles of Criminal Procedure Act. Such interpretation, however, requires strict discretion, more so than is to the tangible objects and articles, on account of ‘freedom of speech’ and disputes in legal interpretation. From the legislative viewpoint, the article proposes amendment of Article 106 paragraph 3 of the Act in a way that it newly includes a measure of ‘removal after copy’. It also argues that compulsory measures–remove order and mandatory compliance of telecommunications business operator - shall be followed to ensure proper implementation of the Act. It is to be hoped that those measures can enhance a system of seizure on electronic information subject to confiscation, and minimize the gap between the law in books and realities in investigative field