전자정보의 압수⋅수색에 관한 연구 - 대법원 2011.5.26. 선고 2009모1190 결정－

Abstract

In modern society, broad using of computers and the dissemination of internet makes many different types of documents and informations with the existing ones. And it makes various problems in collecting and using them for evidences which has not been expected from the code of criminal procedure point of view. For safeguard for human rights of suspects and others, even if the documents or informations were electronic, there is a need of apply 'the principle of prohibition of general warrant' which means a search and seizure warrant can not be issued when something is not relevant to certain suspicion, and also, we need to handle 'the computational crime', which based on the characteristic of electronically stored information, effectively, according to 'the principle of truth(Prinzip der materiellen Wahrheit)'. But there are many problems like a huge time consuming in sorting the relevant informations when the investigative agency is on the spot, because electronically stored informations are usually too broad,and it can cause some unexpected damages of suspect because he/she can not use his/her computer during that time. And there are also other risks that electronic informations can be damaged during that process. Therefore, when issuing search and seizure warrant to electronically stored information, there is a need to permit to seizure the electronically stored media itself and then seizure hard copies or imaging of that electronically stored media, exceptively. However, in case that a warrant specify such an exception,the application should be restricted considering if the investigative agency is in remarkably difficulties to sort the electronically stored informations or not. And the right to participate and surveil of suspect in procedures for obtaining search and seizure warrants should be guaranteed. From this point of view, the principle of the seizure of electronically stored information which this ruling instructed is a perfectly reasonable. But it is criticizable that if this case was reasonable to apply the exception. Especially it is very unreasonable that the ruling judged the illegality of procedures for obtaining search and seizure warrants can be lapsed depending on whether there is suspect's implied consent or not.