디지털 증거의 압수․수색 절차상 당사자의 참여권 및 별건 관련성 없는 증거의 압수 요건 - 대법원 2015. 7. 16.자 2011모1839 전원합의체 결정 –

When investigators search and seizure a digital evidence, a series of processes that moving the storage media, hard copy or imaging replicas to investigator’s office then navigating them to output information related to the allegations in the document should be a part of search and seizure by one warrant, and the possessor of the seized should be present in the process of related information’s seeking and printing in investigator’s office, the court in this case, sitting en banc, reaffirms above theories. There is a view which the party’s right of participate don’t need to be recognized because the process of seeking and printing a related digital evidence from a hard copy or imaging replicas in investigator’s office is only investigator’s internally confirming act or analyzing process of seizures after terminating official search process. However, search and seizure a digital evidence which might include a huge information have a risk for an invasion to the freedom of privacy and personal life, personal information control right and property right so that should not be done comprehensively, and not be at the discretion of the investigator’s authorities. But it is not sufficient to ensure the party’s right of participate so requires legislative resolution on the seeking-related information, extraction procedures. The court says, when the process is terminated after proceeding by one warrant of search and seizure, it should be determined whether the illegal disposal of canceled by whole search and seizure process as one procedure, rather than individually separating the process, step by step. However, prosecutor might use the evidence already collected by legally seizure, since that is not made to be denied retroactive effect to that evidence in another seizure made by wrong, so this part of the supreme court decision can not be said to be reasonable. The court also says, when a material for separate crime is found in the legal seizing process for a related-digital information, the process should be suspended and investigator should ask the court for a search warrant then ensure the party’s right of participate. This part of the supreme court decision can be translated that the requirements of seizure of the material for the irrelevant crime is strictly required because the search and seizure a digital evidence for the original allegations might be used for seeking process of the irrelevant crime and it might cause allowing comprehensively warrant. Accordingly, seeking an allegation related digital evidence should be a legally proceeded, digital information for an allegation of a separate crime should be discovered by accident, and an additional seeking should be suspended for receiving the discretion of the court whether the process is appropriate. Whether the requirement is considered to be established with a specific criteria through the decision for the individual cases in the future.