디지털 진술증거의 입법방안 제시: 형사소송법 제310조의2를 중심으로

Abstract

By the recent 4th Industrial Revolution and the development of information technology, the value of not only the evidence of general statement, which has been considered as important conventionally, but also the evidence of digital statement is being increased gradually in the investigation and trial of criminal cases. Here, the evidence of digital statement refers to the statement information having the value as a evidence 'stored' or 'transmitted' in the digital form and it has characteristics of (a) media independence, (b) vulnerability, (c) invisibility and illegibility and (d) anonymity, and to utilize it as an evidence of 'statement' provided by Article 310-2 of same law, it is required to meet the prerequisite of identity or integrity (authenticity) and reliability. Further, as it cannot be recognized with human perception due to the special characteristics (property, prerequisite, etc.), it can be used as evidence as long as it passes the procedures of 'digital forensics' procedure prescribed in Clause 2, Article 3 of "Regulation of Collection, Analysis and Management of Digital Evidence", the standard operating procedure of Supreme Prosecutors' Office. In the meantime, although Clause 2 of Article 310 of same law is the legislation based on the human (contents of statement of a person) and material evidence (existence and condition of material) such as hearsay or non-hearsay statement, etc, Supreme Court (Judgement No. 2013DO2511) recognized the hearsay rule and its exception (Article 311 or Article 316) on the admissibility of the digital statement evidence, the intangible. However, differently from the United States, our country does not stand on the case law and does not provide the contents of related statement ('-- the text information recollected by storing in data storage media--') in the Article 310-2, which stipulates expressly the hearsay rule, the prerequisite to be met before applying Article 313, the exceptions for hearsay rule, has not been provided. Moreover, since 'Comprehensive' digital statement evidence is not included in Article 310-2, the fundamental provision of hearsay rule and only Article 313, the provision of its exception, includes 'individual digital statement evidence', there is a problem in the legislative void that cannot include the normal document stored in the computer, etc. of Article 315, the provision of same exceptions as a digital evidence. In addition, as Clause 2, Article 313 of same law provides that 'nevertheless of text in Clause 1, the writer of that statement...'. recognizing the true existence of evidence by objective method limited only to that statement, in case of the document containing the statement provided by 'Clause 1' of same article, its application is not recognized taking very limited legislative form. Therefore, regarding how the admissibility of evidence of the digital 'statement' evidence passed through the procedure of collection, restoration and analysis prescribed in 'Clause 3', Article 106 of same law is recognized in the court, this article proposed more systematic legislation on the admissibility of evidence of the statement evidence through (a) the legislative review on the interpretation and limitation for the system of current 'Criminal Procedure Law and (b) the case analysis of legislation examples in the United States.