디지털 증거의 압수·수색절차에 관한 판례 연구 - 대법원 2015. 7. 16자 2011모1839 전원합의체 결정을 중심으로-

Abstract

The present paper review a recent Supreme Court of Korea decision(2011mo1839) of 2015 regarding on requirements for legal procedure of Search and Seizure of the Digital Evidence. In the 2015 decision, the supreme court held that the suspect have a right to participate in the process of execution of search and seizure warrant, in Article 219 and Article 121 of the Criminal Procedure Law. If the officers did not give the suspect the opportunity to participate in the process, the procedure should be cancelled because of it's illegality, so the digital evidence should not be submitted to the Court. According to the decision, seizing a data storage device itself does not mean that search and seizure process is completed. In other words, the search and seizure procedure includes searching, printing out and copying the stored information of the data storage device in law enforcement agencies and the suspect have a right to take part in the whole process. As a result, the officers can not seizure unrelated information to the criminal charge written in the search and seizure warrant. However, the process of retrieving digital information should be regarded as ‘the act of analyzing seized property’ after the completion of seizure process, not ‘a part of search and seizure process’ according to the Article 219 and Article 121 of the Criminal Procedure Law. Participating of the suspect to the whole course of execution of search and seizure warrant can interrupt the process, security and efficiency of investigation. On the other hand, it is necessary to guarantee the suspect’s participation right to the first step after taking out electronic information or information storage device because the information storage device can include much unrelated information like confidential information, trade secrets. It can protect the freedom of privacy and personal information control right and property right of the suspect. Also, the court says, when the process is terminated after proceeding by one warrant of search and seizure, it should be determined whether the illegal disposal of canceled by whole search and seizure process as one procedure, rather than individually separating the process, step by step. However, the evidence already collected by legally seizure, should be submitted to the court, because there is no Article that the evidence collected by legally seizure should be invalidated retroactively in next seizure made by wrong, so this part of the decision can be irrational. The Criminal Procedure Law is not enough to search and seizure digital information efficiently and legitimately. What’s worse, It can not protect the suspect’s participation right in full degree. So we need to legislate law about search and seizure of digital evidence.