정보저장매체 등을 외부로 반출한 이후의 절차에서 피압수자의 참여권을 둘러싼 실무상 쟁점과 해석론

In regards to the seizure and search procedure of electronic information or information storage device, existing studies focused on the issue of lack of compliance to the Paragraph 3, Article 106 of Criminal Procedure Code. In the recent 2011MO1839 en banc ruling on July 16, 2015, however, it was stated that seizure and search procedure of information storage device was illegal overall upon failing to guarantee the participation right of those subject to seizure even in the procedure after taking out information storage device outside. However, it does not specially mention about the level of guaranteeing participation right of those subject to seizure after taking out information storage device or electronic information. Accordingly, there is a need for discussions on appropriate and reasonable interpretation of issues concerning participation right. As for practical issue being raised after taking out electronic information or information storage device, they include the completion period of seizure and search of information storage device, legal nature of act after taking out, correlation between participation right and relevance, etc. In regards to the method and scope of guaranteeing participation right according to step after taking out electronic information or information storage device, they can be divided into eight steps for review. It would be necessary to guarantee the participation right of those subject to seizure in the step of sealing & unsealing of information storage device outside and electronic information imaging; step of upload (storage) to digital forensic center evidence copy system; step of download of evidence copy for deleted file recovery, file extraction; step of upload (storage) to remote digital system; step of searching (or verifying) electronic information; step of copying or printing electronic information; step of unsealing and imaging during evidencing step; step of recovering deleted file, file extraction; step of search electronic information; step of copying or printing electronic information. It should be guaranteed particularly during the process of selectively searching for files and printing them. In regards to searching for ways to ensure reasonable guaranteeing of participation right of those subject to seizure and discovery of substantial truth, it is necessary for investigative agency to determine whether or not to recognize participation right of those subject to seizure when they postpone or refuse without justifiable cause to interrupt investigation. It would be also necessary for the prosecution and the police to specifically supplement participation right according to step in the prescribed regulations or guidelines on the analysis of digital evidence. In the case of investigative agency searching unrelated electronic information, those subject to seizure should contend by using the quasi-appeal procedure. There could also be the method of disposing unrelated electronic information instantly after the completion of case and issuing a certificate (confirmation) of notification to those subject to seizure regarding such matter.