형사절차상 E-Discovery와 제출명령제도에 관한 연구 -미연방 형사소송규칙 및 수정헌법 제5조 관련 판례법리를 중심으로-

E-Discovery refers to a system in which litigants request the other party to disclose digital evidence related to the case in advance before a formal trial. It was the first established in a Common Law countries, and the United States began to apply its procedures and methods to criminal proceedings after it was first stipulated in the Federal Rules of Civil Procedure in 2006. It was an extended application of the existing discovery system to electronic evidence. In the criminal procedure, especially in the investigation stage, there is inevitably a limit to collecting related evidence just by simply ‘requesting’ the discovery of data held or concealed by the other party, that is, the suspect and the defendant. As a result, the need for forced decryption emerged in the United States. Also, the Act of Production Doctrine and Foregone Conclusion Doctrine appeared through precedents to harmonize the forced decryption with the 5th Amendment. It was an enforcement through a warrant, not through E-Discovery, to unlock and disclose the defendant's data and the electronic device in which the evidence was stored. But even though both principles are valid, they are not specific. Thus, there is a risk that the application of 5th Amendment may be excluded if the investigative agency knows the existence of the data in advance. In addition, unlike the United States, Korea does not have a concept of Subpoena. Considering the fact that Korea does not have regulation on methods or procedures about e-discovery, it seems premature to apply the two principles to Korea immediately. The two principles should be considered after enacting related laws and reorganizing the system. It is necessary to develop Korea's laws and systems while continuing to watch how the two principles are reflected in U.S. investigative practice.