각종 디지털 진술증거의 입법론적 고찰: 개정 형사소송법 제313조 제2항을 중심으로

Abstract

Recently, as the partial revision of criminal procedure law proposed by 9 national assembly members including Kim Jin-Tae was submitted on May 29, 2016 and passed in Legislation and Judiciary Committee of National Assembly, and Article 313 was revised according to Law No. 14179. The phrase that the digital statement stored in various computer discs and similar data storage media shall be treated equivalently as the conventional statement in written document, was specified in the parenthesis of the text under Clause 1, which has recognized the authenticity of the statement in written document only by the statement of the person who have written the document in the trial. In addition, for the case that the stater may deny the authenticity not only for the statement prepared (provided) in various digital methods but also for the conventional written document, the dramatic change was made for the evidence rule system in the conventional 'text' of Clause 1 by revising 'Clause 2', which the admissibility of evidence is recognized if the authenticity is proven by "...the objective methods such as digital forensic data examination, etc. based on the scientific analysis results...". Nevertheless, the revised 'Article 313' still has the room for argument and interpretation in the phrasing of law (digital forensic data, examination, etc) and the judicial precedents (precedent of Supreme Court 2013 DO 2511, etc.) around the subject of passive statement of evidence application in the 'text' of Clause 1 on the various digital statements and active and the objective proving method and the specific issues of its stater in Clause 2. After all, to put an end to the argument in the legal phrasing and the precedent on the revised 'Article 313', the revision of the law that adds "When the authenticity of formation is proven by the objective methods such as digital forensic examination, data, testimony (limited to the testimony of those who participated in collecting, analyzing, keeping, presenting (the evidence in the computer discs, video tape, recording tape and other similar data storage media before prosecuting the case...) in the provisions of 'Clause 2' of same article is needed. This article examined the contents of various data storage media in Clause 1, the measures to secure the objective evidence and the objective proving methods in Clause 2 in order, and suggested the rational legislative measures for the various digital 'statements'.