디지털 저장매체의 압수․수색과 그 쟁점

Abstract

This paper is a commentary on the ruling of the trial court in so-called ‘Wangjaesan’ Case which became recently one of the most controversial issues regarding the National Security Law case. Most problematic was the viewpoint of the court about search and seizure of digital storage devices, since the court stood totally opposed to the principle thereon set out and published by the Supreme Court of Korea. The former part of this article is thus alloted to analyzing the opinion revealed by the trial court concerning search and seizure of digital storage devices, by comparing it with the principle declared by the Supreme Court. Through this I tried to verify that the attitude and judgment of the trial court in the ‘Wangjaesan’ Case are obviously a deviation as well as a fallacy. In the latter part of this article, then, I studied the controversies related to digital evidence in detail. At the very core of the controversies was the issue ‘object(s) of search and seizure’, which has continued to be the most difficult problem in theory. Another big issue is ‘manner of search and seizure’, which used to be one of the biggest difficulties in practice. In this article, I tried to construct a new theory based on the arguments in the USA that served as a historical momentum to change the paradigm of traditional theory focused on tangible objects. That can be called the transformation of view from the ‘analogue mind’ to the ‘digital mind’.