공소제기 후 강제수사와 임의제출물 압수의 허용범위

Abstract

Seizure of a voluntarily submitted Item after indictment can be seen as a voluntary investigation in that compulsory force is not exercised in the process of collecting evidence. However, the Item cannot be taken at will by the submitter, and since it has the same effect as seizure by a warrant, it must be judged as a forced investigation after filing a prosecution. In addition, in accordance with the principle of proportional investigation, it should be carried out within the ‘the minimum required range' to achieve the purpose of the investigation. If the investigative agency confiscates the mobile phone owned and managed by the Defendant from a third party as a voluntarily submitted Item, it may significantly violate the defendant's personal legal interests such as privacy and freedom, and the right to self-determination of information. Therefore, unless there are special circumstances, the investigative agency can legally confiscate only related information that is specifically and individually related to the alleged crime. Unrelated information is excluded from seizure and search, and the Defendant's procedural rights should be guaranteed by guaranteeing the Defendant's right to participate and issuing an digital evidence confiscation list in the process of search and seizure of digital evience. It is illegal for investigative agencies to search, duplicate, and output irrelevant information that is not related to criminal facts on mobile phones submitted voluntarily without guaranteeing procedural rights such as the defendant's right to participate, and acquired digital evidence is illegal collection and cannot be used as evidence.