전자정보의 증거능력을 둘러싼 쟁점별 검토와 해석론

Abstract

The originality, truthfulness, integrity and reliability, which are the characteristics of electronic information, have absolute impact on the evidence admissibility existence of electronic information. In other words, the characteristics of electronic information work as the previous conditions in the review of evidence admissibility existence of electronic information. Regarding the extent of substantiation, it can be said that the evidence admissibility has been substantiated, if the participation right has been warranted, a confirmation letter at the time of the packing, opening or closing the seized item has been issued, imaging after a write-protection device has been done, a globally acknowledged program has been used, the reliability of the hash value given after the seizure has been maintained until the verification, the mechanical accuracy of the computer, the reliability of the program and the technical capability of the operator have been met from the time of the search and seizure by the investigating institution until the submission of the electronic information as an evidence. However, these are just a guideline suggested by the judicial precedents; while the extent of substantiation should be collectively judged in each concrete case. Electronic information is a statement document and it is also is a non-statement document. Electronic information is also original evidence and it is also is hearsay evidence. It is not easy to meet the requirement of autograph or sealing because of the electronic information characteristics; however, in consideration of the electronic information characteristics, the formal authenticity requirement should be seen as having been met if there is no difficulty in the replacement of autograph or sealing requirement required in the statement document by an objective method. It should be seen that the electronic information to be used as evidence would not be applied of the Article 311 and the Article 312; while the Article 313 should be applied. The current law has the gap that the evidence admissibility of the output from electronic information would be denied if the establishment truthfulness would not be acknowledged by the statement of the author. Accordingly, it is urgently required that the Article 313 should be revised to fill this gap. Until the provision would be revised, it should not be seen that the truthfulness establishment would be acknowledged by the ‘statement only’ regarding the truthfulness establishment of the author or the testifier in the Article 313-1; while it should be allowed to achieve the substantiation by way of an objective method other than a statement. It would be reasonable to interpret the meaning of the “against the statement” in the condition of the Article 313 as “against the fact that the truthfulness establishment has been denied” and to interpret the meaning of the “the document carrying the statement of the defendant” as “the statement document carrying the statement of the defendant”. However, it should be seen that the Article 314 would not be applied. Meanwhile, the application of the Article 315 should be accepted if the document is a public certifying document prepared as electronic information by information storing medium or if the document is circumstantially acknowledged of its credit as having been prepared as a part of routine work.