압수･수색영장의 집행절차에서 기타 ‘필요한 처분’의 의미와 한계

Necessary disposition is required in many cases for executing searchㆍseizure warrant smoothly. For the necessary disposition, legal force criminal justice institutes may or may not be required. However, necessary disposition right which is accompanied inevitably for smooth execution of searchㆍseizure warrant has specific limit and restriction, so it must be executed within the limit that ‘necessity’, ‘proportionality’ and ‘relevance’ of searchㆍseizure are acknowledged. And even in case of exercising necessary disposition right for achieving a goal of effective searchㆍseizure, it is restricted by the limits of the first and last phase of exercise of necessary disposition right for executing searchㆍseizure warrant, material･interpersonal limit, limit in application of the Article 216～217 of the Criminal Procedure Act and limit in executing searchㆍseizure warrant. The scope of exercise of necessary disposition right must be judged through a rational decision on the purpose and details of execution of searchㆍseizure warrant, necessity and urgency of searchㆍseizure, intent of executor, attitude of person subject to seizure, value of the object of seizure, damage and difficulty of restoration, cause and method of disposition etc. As main types of necessary disposition right, use of deception for smooth access to the place of execution of searchㆍseizure warrant, photography shooting(video recording) of the place of execution of searchㆍseizure warrant, body search･physical examination of person subject to disposition, restriction on the movement and behavior of person subject to disposition, necessary disposition in searchㆍseizure of electric information shall also be considered. More than anything else, necessary disposition right which can be exercised for effective execution searchㆍseizure warrant may cause violation of human or property rights of person subject to disposition, so it must be exercised within the minimum range on the frame of due process of law.