디지털 증거의 보전명령제도에 관한 고찰

As revolutions in science and information technology have made profound changes in society, many tasks have become easier than ever to handle. Such changes, however, have also given birth to the emergence of new types of crimes and modern spinoffs of traditional crimes by means of new technology. Information and electronic communication flow more easily around the world and criminals are able to reach more parts of the world without ever having to travel themselves. With several keystrokes, criminals can commit malfeasance that can affect everyday citizens on local, national, and global levels without ever having to leave the comfort of their own homes. This new wave of crime challenges the existing legal system and principles. Criminal law must keep abreast of these technological developments which offer highly sophisticated opportunities for the misuse and abuse of cyberspace. The international legal community launched the Convention on Cybercrime aiming to meet these global challenges while respecting human rights in this new information society. The preservation order is an important investigative tool in addressing so called high-tech crime; especially crimes committed through the Internet because of the volatility of digital data. A preservation order of digital evidence(evidence in digital or electronic form) is a legal instrument that equips law enforcement in the fight against cybercrime and misuse of internet technology. A preservation order ensures that authorities are able to order or similarly obtain the expedited preservation of digital evidence in connection with a specific criminal investigation or legal proceeding. Although preservation orders were introduced more than a decade ago, there has been hardly any debate or in-depth research on such orders. For this reason, this paper intends mainly to cover the language of preservation orders stipulated in the Convention (which has been leading voice in constructing the legal framework to ensure an efficient instrument necessary for the fight against crimes). In addition, legal regimes of advanced states such as United States, Germany and Japan will be discussed. This paper will also review criminal procedure revision bills from the 18th and 19th National Assembly that prescribe preservation orders as one of several newly introduced vehicles to cope with the evolution and advent of state-of-the-art technology crimes. These legislative endeavors are expected to spark intense arguments on the need for proper legal instruments, including preservation orders, required to protect society against challenging, complex cybercrimes. Such discussion and debate will bear much valuable fruit in the near future to meet the challenges of the war against cybercrime.