전자정보의 ‘역외 압수수색’이라고 불리는 문제에 대한 일고찰 ― 사법관할권의 침해 문제를 중심으로 ―

Abstract

“It exists anytime and anywhere.” It has been long time that the Ubiquitous era has arrived. Information and communication technology is being developed every day. The service user such as internet, etc. can access to the network freely regardless of form and type of medium as well as the place. The form of electronic information is not tied to the concept of physical location such as USB, mobile phone, web site, SNS, etc. It can be acquired with electronic transmission without restriction of space. It is the characteristic of electronic information. Therefore, for the investigation agency to collection the electronic information, there is the case that it should access to the network system through information network. As such. whether ‘Remote Search and Seizure’, which the search and seizure location written in the warrant and the storage site such as the relevant electronic information server, etc. are different, and whether the extra-territorial search and seizure infringes the legal jurisdiction of a foreign country become problem. On February 01, 2021, Supreme Court of Japan made a decision with intent of suggesting the certain criteria related to its permission. It is the first decision in Japan by Supreme Court on the issue of extra-territorial search and seizure. The United States showed its attitude to solve them legislatively by enacting and implementing Cloud Act in 2018. Our Criminal Procedure Act does not provide direct provision, yet. However, Supreme Court (2017DO9747) ruled that to collect the electronic information, the investigation agency accesses the account by providing the ID and password acquired legally to the computer in the search and seizure site written in the warrant and downloads the relation information is allowed although the information storage server is located in offshore. I think that the concept of search and seizure of electronic information needs to be reestablished. It is more true in case of search and seizure through IT network. it should be understood that the electronic information itself is not physically seized. The investigation agency should noy seize the information itself but preserved it in order to recognize what has the evidential value. The subject information is not transferred through IT network. It is only recognized and preserved. And then, the cross-border issue does not occur. In such sense, it s not “extra-territorial search and seizure”, where the legal jurisdiction issue arises.