정보저장매체 등의 압수・수색절차에서 참여권의 입법론에 관한 타당성 검토

Recently, the theory of legislation on the participation right in the procedure of search・seizure of data storage media or electronic information has been raised continuously. Theory of legislation raised recently is about establishment of additional regulation on the participation right as participation right of subject to seizure is very important in the process of search・seizure of data storage media or electronic information. The background such assertion is raised despite our current Criminal Procedure Act has regulations on the participation right in the procedure of search・seizure is to keep fundamental rights of subject to seizure from being infringed by preventing use of electronic information not associated with criminal fact for another cases and preventing misuse・abuse of personal information in the procedure of search・seizure of electronic information. If additional regulations on the participation right are necessary, however, such regulations must be supplemented or added to the existing regulations of participation right, but if not, it may end in addition of unnecessary regulation. If we take a close look, there is a need to take a closer look on the regulations of participation right that must be guaranteed from commencement to the end of search・seizure in the procedure of search・seizure. Meanwhile, there is no need to view search・seizure of electronic information differently from search・seizure of general objects, but unlike procedure of search・seizure of general objects, details are required for the procedure of search・seizure of data storage media or electronic information. Due to the nature of electronic information, volume of personal information of a third party as well as subject to seizure which is not related to the criminal fact, so the importance of participation right is on the rise. Therefore, if new regulations on the participation right are added to the procedure of search・seizure of data storage media or electronic information, participation right of subject to seizure must be regulated to be guaranteed sufficiently and substantially from commencement to the end of the procedure of search・seizure of data storage media (electronic information). However, protection of fundamental rights of subject to seizure and finding of substantial truth shall also be in harmony by enacting a regulation to prevent subject to seizure from giving up exercise of participation right or attempting obstruction to investigation under the pretext of participation right.