디지털 증거의 역외 압수․수색

Abstract

The present paper reivew a recent Supreme Court of Korea decision(2017do9747) of 2017 regarding on Extra- territorial Search and Seizure of the Digital Evidence on Foreign Server. In the 2017 decision, the supreme court held that there was no jurisdiction problem because the whole search and seizure process took place inside South Korea not in Foreign Country where the data was stored. But in this case, High Courts decision(2017no23) was not same. The Judge of High Court held that the information seized through logging into the suspect’s email was not admitted and remote search and seizure was illegal. It was determined that the seizure was illegal, because email service provider(SINA.COM) was not present to participate in the search and was not served the warrant. There are many different opinions about this decision of Supreme Court. It is a big problem that there is no rule about exterritorial search and seizure or remote search and seizure of the digital evidence in the Criminal Procedure Act. But I agree with the decision of Supreme Court, because it is more important to consider the privacy rights of the user, not the internet service provider, so warrants should be issued to email users and the users should participated in the search and seizure, and the real searching procedure was proceeded on the computer in that place, not on Foreign Server. Many people use foreign internet service like Google. Also, it is used by many offenders for crimes. It is necessary and efficient way to find important digital evidence to permit Extra- territorial Search and Seizure of the Digital Evidence. Also, it is that the best way to get the vital evidence with minimum infringement of foreign sovereignty. We need to revise the articles of the Criminal Procedure Act about search and seizure of the digital information to get the digital information efficiently under the rapidly changing digital circumstances.