디지털증거에 대한 압수수색 및 증거능력에 대한 연구

Abstract

The legal guidelines are strictly set for the search and seizure of digital evidences. The Supreme Court of the Republic of Korea has recently confirmed the High Court’s decision that the law enforcement should retrieve only the crime-related information, and should allow participation of the person being searched even when the retrieval is conducted in places other than the location being searched due to the technical restrictions. It also confirmed that the law enforcement shall immediately stop the search and apply for additional search warrant to persue any information related to other crimes independent from the original crime the warrant was issued to address. However, our daily lives are rapidly changing due to the technological advances. More people are constantly connected via such media devices as smart-phones, notebook PCs, and tablets. The Internet of people that used to connect people are now expanding to the Internet of Things(IoT), and even to super-connected society coined in terms such as “Internet of Everything(IoE)”. Natually digital evidence is no limited to cybercrimes, but it can be related to any general crime. Digital evidence may play important role in any criminal cases, because of the increasing “digital” aspect in human activities. Ditigal evidence is storage-independent, invisible, variable, vulnerable and abundant. Especially the original and copy cannot be differentiated (storage-independent) and cannot be comprehended without processing (invisible). Current Criminal Procedure Code which governs the search and seizure of digital evidence was codified for physical objects rather than intangible digital evidence. The 2011 revision of Clause 106 was in consideration of the methods information retrieval from digital storage media, but it is no way near to sufficient. The search and seizure procedure covered in chapter 10 of the Criminal Procedure Code should be modified to fit the needs of highly digitalized society.