임의제출물 제도의 개선방안-휴대전화1)를 중심으로

The discusion of voluntary submision of mobile phones contains many isues. Firstof al, the time when mobile phones are voluntarily submited to the investigation agencycan be generaly divided into two cases. First, a person who “has a god reason tosuspect that he has commited or is about to commit a crime” as in Article 3, Paragraph1, Item 1 of the Act on the Execution of Police Oficer Duties, or who is “recognizedas knowing the facts of a criminal act” in Paragraph 2 of the same Article. It is an actthat acompanies an unintentional inspection of a mobile phone, and it is a case wherea mobile phone is voluntarily submited during stop and search. In this case, sinceParagraph 3 of the same Article only stipulates the investigation of whether a policeoficer poseses a weapon or not, it is true that there is a dispute over the legality ofinspecting belongings other than weapons. The voluntary submision of personalbelongings can be recognized as legal, and it is unclear whether the subject of stop &search wil be able to admit that he or she voluntarily submited a mobile phone. Second,it is a case where a mobile phone is voluntarily submited before or after the time ofdetaining a person as the subject of compulsory investigation such as arest or detention. In this case, whether it is logicaly posible for the subject of compulsory dispositon tosubmit a mobile phone voluntarily to an investigation agency is in question, and in thecase of arest or detention, the investigation agency must comply with the provisions ofArticles 216 and 217 of the Criminal Procedure Act. It is posible to seize and searchwithout a warant, but even though it is required that an ex-post warant be isued, thequestion is whether it can be recognized as an object submited voluntarily under Article218 of the same Act and can be seized without a warrant.