전자증거의 적법한 압수와 별건 증거사용에 관한 실무 연구

With the development of information communication technology and computerized information processing equipment, the problems of using information transmitted and received by the equipment such as computers, smart phones, tablet PCs, etc as a proof in investigation and trial have been debated. The exclusionary rule of the illegally obtained evidence is the stipulation of due process in Constitution, and the Criminal Procedure Law Code 10864, which has been revised in July 2011, newly established the clause about ‘method of confiscation’ when “the object of confiscation is a computer disk or other similar information storage medium (hereinafter referred as “information storage medium etc”).” Although this newly established clause of the Criminal Porcedure Law reflects the development of information and communication technology, the question of interpretation and application of this law arises from the perspective of privacy protection and specification of electronic information. In order to be used as evidence in criminal proceedings, electronic information needs different method of collection from that of traditional evidences such as document and material evidence due to its duplicity, readability and volatility. Due to the above characteristics of electronic information, it is difficult to judge the relationship with the accused case, in other words the relation with criminal charges, until moving the storage medium in which the actual electronic information is recorded. Thus, “principle of selection seizure and method of exclusionary seizure of media” is allowed In practice. Since it is necessary to “seek” the relevance with the defendant case during the execution of stored electornic information search warrant, the right to participate in the search warrant execution should be guaranteed in order to exclude general warrant and ensure human right of the parties, etc. If the confiscated object holds information evidence that is not related with the warrated case, the use of legitimate evidence of the separate information becomes problematic. Since the current Criminal Procedure Law added the therm “relevance” in addition to “necessity” in terms of setting requriemts for deciding target of seizure, “relevance” has the positive meaning that is independent from “necessity.” However, the Supreme Court strictly restricts the ‘object of sizure’ and expands the meaning of its relevance. Such attitue of Supreme Court nees to be reexamined. In connection with the requirement to use the seized electronic information as evidence of another criminal fact, the Supreme Court’s intention is understood as that separate warrant for different crime is needed in order to use the legally collected evidence as the evidence of ther crime. In this case, separate search warrant is necessary in order to use the seized electronic information as evidence of antoher criminal fact. Also, during the executiion of warrant, the participation rights should be extended to third parties that has possibility of infringement. This is the interpretation that suits the due process rule in Constittuion.