정보저장매체의 압수수색절차에서 피압수자 등의 협력의무를 둘러싼 법적 쟁점

The duty of a person subject to seizure/disposition to cooperate in the search and seizure of digital storage media is essential for the sake of the efficient discovery of substantive truth in advanced information era, as well as the guarantee of fundamental civil and human rights of the person subject to seizure. The significance of the duty also arises from the nature of electronic information (e.g., independence of media, invisibility, illegibility, intangibility, mass volume, technicality, networked feature, volatility, and alterability), as well as the need to discover substantive truth and comply with due process of law. However, the duty to cooperate is not unlimited. The temporal point of start and finish of the duty is the initiation and termination of search and seizure. The place from which the duty arises is not confined to the personnel on the site of execution of the warrant on search and seizure, but reaches the personnel on those other sites who control, manage, and operate the digital storage media connected by server. The obligor is the person subject to seizure/disposition and those third parties who operate the digital storage media pertinent to a given case and relevant mechanical equipment (e.g., server operator, staffers, mid-level manager, and the person in charge). The scope of the duty encompasses specific manipulations of digital storage media at the place of search and seizure, ranging from decryption and decoding, to search, selection, duplication, and to printing out. In the unfortunate event the digital storage media leaked, the duty of cooperation should be deemed to include the supply of password necessary to operate the original media. The duty is limited by the obligation not to severely constrain the right of defense and the fundamental rights of the suspect (person subject to disposition) beyond the bounds set by the proportionality doctrine. It would be necessary to introduce the order for provisional remedy, and revise those provisions applicable mutatis mutandis under Article 219 of the Criminal Procedure Act. Meanwhile, the likelihood of de facto duty to cooperate may be enhanced by a reasonable interpretation of Article 106(3) of the said Act. Ultimately, in legislating on the duty to cooperate in search and seizure of digital storage media, account should be taken simultaneously of the fundamental rights of the person subject to seizure/disposition and the discovery of substantive truth.