수사절차상 압수·수색규정에 대한 비판적 검토

This paper is reviewed critically on the execution method of search and seizure warrant, objects of seizure, and requirements of search and seizure articles regulated in Criminal Procedure Act that was amended in 2011 according to environmental change. As a result, first, with regard to the degree of criminal suspicion required as general requirements of search and seizure to which investigative agencies need, heretofore the majority of theories have explained the meaning of phrase as a sense of ‘mere suspicion' or ‘first suspicion' because article 215 Criminal Procedure Act has only regulated as a phrase of ‘the necessity of investigation'. But ‘the circumstantial existence of crime suspicion' in the article 215 of Criminal Procedure Act requires more than ‘mere suspicion' of crime, and therefore the level of suspicion is explicitly needed a higher stage than ‘mere suspicion' and ‘relevancy with the criminal case'. For the substantial judgment to search and seizure warrant, these requirements should be respectively independent elements of search and seizure. Second, there are many controversies in the interpretation because a current Criminal Procedure Act is not expressed explicitly concerning whether electronic information is still object of seizure or not. Relevant regulations concerning electronic information as the object of seizure should be enacted or revised to eliminate these debates. According to a view of de lege ferenda electronic information should be expressed as the object of seizure in paragraph 1, article 106 Criminal Procedure Act. Third, the content of paragraph 3, Article 106 Criminal Procedure Act newly revised was not included electronic information as the object of seizure, but it was defined the execution method of search and seizure warrant concerning electronic information. Current regulations regarding search and seizure are insufficient to apply for the search and seizure of electronic information in investigation procedure. Accordingly, electronic information should be stipulated as object of search and seizure in Paragraph 1, Article 106 Criminal Procedure Act. However, if electronic information is considered as the object of seizure, the finished time of execution of search and seizure warrant is time to be acquired the content of electronic information. therefore, to extract criminal relevant information in the information storage device is a part of continuous process in the execution of search and seizure warrant. This point of view is equal to the opinion of Supreme Court. In addition, concerning problems on the return of seizures article, extent of participation in the enforcement process of search and seizure warrant of a party to the seizure, and discovered evidences in enforcement process of search and seizure warrant are required the revision of relevant regulation in considerations of the efficiency of investigation and security of human rights.