디지털 증거의 압수 · 수색에 대한 문제점과 개선방안- 형사소송법 제106조 제3항을 중심으로 - (The problems and solutions on the search and seize of digital evidence - Focusing on Article 3, Chapter 106 of Criminal Procedure Act -)

서지정보

· 발행기관 : 한국형사법학회
· 수록지 정보 : 형사법연구 / 25권 / 4호 / 171 ~ 192페이지
· 저자명 : 정병곤

초록

As our society is becoming information-oriented, new type of crimes through the internet is occurring, and Criminal Procedure Law was amended in 2011 according to this environment. For general crimes, evidence can be collected and submitted to the court as it is, but for computer or online crimes, the digital evidence has to maintain the uniformity as the original when it is collected. Since digital evidence's characteristics are such as invisibility, unreadableness, large scale, and vulnerability, so it's hard to achieve a desired result just with the traditional seizure and search regulation on the object. The academic world and legislation activities have been actively discussing about a rational procedure of the seizure and search of digital evidences, and as a result, the Criminal Procedure Law was amended in 2011 and established Article 106 Clause 3.
The Criminal Procedure Law Article 106 Clause 3 defines that the "When the object of seizure is computer disk, or other similar information saving medium, Court should be offered in printed or duplicated form within the defined range of stored information. However, when it is acknowledged that printing or duplicating within the defined range is not possible or it seems hard to achieve the goal of seizure, the Court can confiscate the information saving medium.”The problem and improvement plan of the Criminal Procedure Law Article 106 Clause 3 is as follows.
First, in the process of amending the Criminal Procedure Law, the definition of ‘Information’ is not clearly defined, and there still exists an interpretative controversy on the issues of seizure and search objects. The object of seizure regarding ‘information’ can be acknowledged with the existing law, and the amendment procedure adding ‘information’ should await accumulation of the precedents.
Second, the Criminal Procedure Law Article 106 Clause 3 makes it a principle to print or duplicate the designated range in the digital storage medium, and then exceptively allows the physical data storage media. The legislative intent of protecting the fundamental rights of the submitting person should be respected, so this "principle-exception" rule should be maintained.
Third, in the enforcement of seizure and search of digital evidence, under the exceptive circumstances defined by Criminal Procedure Law Article 106 Clause 3, the storage medium is sometimes confiscated first and then analyzed at a third place, then this seizure of storage medium has to be interpreted as the end of the seizure enforcement. Transporting the confiscated storage medium to the third place and analyzing should be considered as the process after the seizure enforcement, and new regulation should be established to control this succeeding process.

영어초록

As our society is becoming information-oriented, new type of crimes through the internet is occurring, and Criminal Procedure Law was amended in 2011 according to this environment. For general crimes, evidence can be collected and submitted to the court as it is, but for computer or online crimes, the digital evidence has to maintain the uniformity as the original when it is collected. Since digital evidence's characteristics are such as invisibility, unreadableness, large scale, and vulnerability, so it's hard to achieve a desired result just with the traditional seizure and search regulation on the object. The academic world and legislation activities have been actively discussing about a rational procedure of the seizure and search of digital evidences, and as a result, the Criminal Procedure Law was amended in 2011 and established Article 106 Clause 3.
The Criminal Procedure Law Article 106 Clause 3 defines that the "When the object of seizure is computer disk, or other similar information saving medium, Court should be offered in printed or duplicated form within the defined range of stored information. However, when it is acknowledged that printing or duplicating within the defined range is not possible or it seems hard to achieve the goal of seizure, the Court can confiscate the information saving medium.”The problem and improvement plan of the Criminal Procedure Law Article 106 Clause 3 is as follows.
First, in the process of amending the Criminal Procedure Law, the definition of ‘Information’ is not clearly defined, and there still exists an interpretative controversy on the issues of seizure and search objects. The object of seizure regarding ‘information’ can be acknowledged with the existing law, and the amendment procedure adding ‘information’ should await accumulation of the precedents.
Second, the Criminal Procedure Law Article 106 Clause 3 makes it a principle to print or duplicate the designated range in the digital storage medium, and then exceptively allows the physical data storage media. The legislative intent of protecting the fundamental rights of the submitting person should be respected, so this "principle-exception" rule should be maintained.
Third, in the enforcement of seizure and search of digital evidence, under the exceptive circumstances defined by Criminal Procedure Law Article 106 Clause 3, the storage medium is sometimes confiscated first and then analyzed at a third place, then this seizure of storage medium has to be interpreted as the end of the seizure enforcement. Transporting the confiscated storage medium to the third place and analyzing should be considered as the process after the seizure enforcement, and new regulation should be established to control this succeeding process.

참고자료

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