전자정보에 대한 압수·수색의 참여권, 실질적 피압수자의 개념의 등장과 흐름 - 대법원 2023. 9. 18. 선고 2022도7453 판례과 관련하여 -

Abstract

Recently, the Supreme Court ruled that even if a person who hid evidence (hereinafter referred to as the "evidence-hiding perpetrator") submits to investigative authorities a storage medium owned and managed by the principal offender, which the evidence-hiding perpetrator possessed and kept after being instructed by the principal offender to hide evidence, and even if the principal offender is not granted the right to participate in the exploration, duplication, and printing of electronic information stored in the storage medium, if the principal offender has waived or transferred the exclusive management and disposal rights over the storage medium in question, the principal offender is not considered the substantive target of seizure. This ruling differs somewhat from the established logic of the Supreme Court. Previously, the Supreme Court ensured the opportunity for participation to the targets of seizure and search (hereinafter referred to as the "target of seizure") and their defense counsel even when moving storage media or duplicates containing electronic information to the offices of investigative agencies for duplication, exploration, and printing. Additionally, by introducing the concept of the "substantive target of seizure," the Supreme Court demanded that the target of seizure exercise practical control, management, and use of the storage media containing electronic information at the time of seizure and search and exercise exclusive management and disposal rights over it. Below, we will summarize the main points of the Supreme Court's ruling in its decision of September 18, 2023 (Case No. 2022do7453) and review the Supreme Court's attitude towards the participation rights of the "substantive target of seizure" in the exploration, duplication, and printing of electronic information stored in storage media, comparing it with relevant precedents.