디지털 증거의 압수ㆍ수색에 관한 판례 동향과 비교법적 고찰

Duplicates of digital evidence are usually very difficult to be distinguished from itsoriginal copy. Digital evidence has characteristics of coming in massive quantity,being able to be forged easily and being very professional. For such reasons, newand fresh ways of requesting a search warrant on and execution of such evidence,which are very much different from what we have had (traditional and analoguemethod), need to be considered and are required direly at this point. Nevertheless,it is unfortunate to see that the Supreme Court is enforcing a systematic processfrom taking prior regulation controls up until reaching the point of suggestingconcrete methods of execution regarding search and seizure under jurisdiction of‘Principles and Exceptions’. The United States, being one step ahead of us, have been authorizing fieldinvestigators full jurisdiction and have been relying on their discretion withsuggesting concrete methods regarding search and seizure, after the ruling of previous court case The United States vs. Comprehensive Drug Testing Inc. held in2010. During such process, though there may exist excessive ruling and execution,the United States have been applying the system of returning seized evidence,considering the possibility of good faith instead of closing the case only based uponintentional or intended illegality, not ruling out the capabilities and possibilities ofsuch evidence. In 2011, regarding such ‘principle and exception’ case, it seems though Korea'sSupreme Court ruled based upon the ruling of previous case 579F.3d 989 held in2009 (one of CDT rulings). However, ruling after such case held in year 2009 wentthrough cassation. Along with the establishment of new systems of seizure and expedite preservationprocess, there is a dire need that such law or regulation regarding ‘principle andexception’ needs to be modified. Further, we need to keep in mind that there needsto be distinct line between the management and operation of investigators anddetectives in order to increase the reliability and credibility of digital evidence.