별도 범죄혐의 관련 정보의 압수·수색에 관한 대법원 2015. 7. 16.자 2011모1839 결정의 검토

The Supreme Court of South Korea has recently ruled en banc that electronic information found in the course of search and seizure of electronic information pertaining to an unrelated criminal charge can be subject to lawful search and seizure if and only if: (1) the evidence was found before the end of the initial search and seizure, (2) in the course of lawful search of electronic information related to the original criminal charge, (3) by an inadvertent discovery, and (4) additional searches of the newfound evidence is suspended, until (5) warrants for search and seizure of evidence for additional crime has been issued. Especially when electronic information is the subject of search and seizure, it is likely that additional information unrelated to the original criminal charge be discovered, due to its massive nature, replicability, and the distinct nature of the search and seizure procedure. The investigative agency could be tempted to launch investigation of any subject, anytime, without the concern for destruction of evidence, based on the electronic evidence found inadvertently during the search of massive electronic information obtained during the initial search and seizure. The warrant for search and seizure of unrelated electronic evidence obtained in the course of initial search and seizure for a certain criminal charge may, in some cases, be not drastically different from the original warrant, which is only a little altered form of general warrant. In the U.S. court cases, like Tamura case, Carey case, CDT case, and the recent Riley case, the court has ruled to set the range of searches and seizures after comparing and contrasting two conflicting values – right to privacy, along with the protection of the law to achieve social good – in respective cases. There has also been suggestions to enact restrictions on the Plain View Doctrine in cases concerning electronic information, such as: entrusting a third party to search the electronic information obtained during searches and seizure instead of the investigative agency, avoiding leaking of information not directly related to the criminal charge, immediately suspending the search when there is a need for additional seizures of evidence unrelated to the original criminal charge, and requiring strict adherence to the boundaries of the warrant during its execution. The Supreme Court of South Korea ruled that searches and seizures of imaged, unrelated electronic information by an additional warrant is legally viable. However, it is introducing new measures enact the Plain View Doctrine as the prerequisite of such additional searches and seizures. The court's ruling that search and seizure of an imaged electronic information – which is unrelated to the original criminal charge but was found by prosecutor during the search of both related and unrelated information unlawfully reproduced from an imaged file – is an unlawful gathering of evidence seems reasonable. Nevertheless, the Supreme Court's decision that illegality of a prior proceeding naturally translates into illegality of a following proceeding, that imaged unrelated electronic information could be subject to searches and seizures, and that "inadvertent discovery" is required should be modified or otherwise supplemented with additional logical explanation.