독립적 긴급 압수ㆍ수색 제도의 필요성에 관한 재고찰 - 디지털 증거의 압수ㆍ수색에 있어서의 필요성을 중심으로 -

Search and seizure by investigative agencies is a compulsory investigation, thus it must be enforced under a warrant issued by a court in advance. However, under the current criminal procedure law, search and seizure can be executed without a warrant if investigative agencies must execute arrest or constraint. In addition to such a circumstance, warrantless search and seizure may also be necessary even if there is no demand for compulsory measures, e.g. arrest or constraint. Considering various situations that may occur at investigation scenes, it can be concluded that a need to seek proper means for warrantless search and seizure exists regardless of the execution of arrest or constraint. Such a need would increase significantly if digital evidence is a primary subject of search and seizure. Given the characteristics of digital evidence - easy to destroy, transmit and disperse -, the call for a warrantless emergency search and seizure system has been growing. And in terms of search and seizure, the most ideal way to achieve the purpose of investigations would be without personal restraint. Therefore, taking into account that warrantless emergency search and seizure is a compulsory measure, setting strict conditions and allowing limited execution through legislation may yield the balance between the finding of substantive truth and due process of law.