정보저장매체 임의제출에 따른 압수절차에서의 쟁점

In these days a mobile phone comes into wide use and many crimes are frequently committed by means of mobile phone. For example many persons are prosecuted because of taking photographs in the subway etc by using a camera of mobile phone. So much evidence of a crime is stored in mobile phone. The recent Supreme Court decision, 2016 Do 348, ruled on the search and seizure of digital evidence by consent. The Supreme Court's 2016 Do 348 decision guaranteed the right to information privacy in that it strictly regulated the search and seizure procedures for digital evidence by consent. The main points of the Supreme Court decision can be summarized as follows. Firstly, the Supreme Court limited the scope of digital evidence confiscated by consent. In this regard. the Supreme Court ruled that those who consent to search and seizure of digital evidence may limit the scope of digital evidence confiscated. In addition, the Supreme Court stipulated procedures to be followed by investigative agencies in the process of confiscating digital evidence by consent. In addition, the Supreme Court limited the scope of digital evidence confiscated by consent to information related to the alleged crime. Secondly, where a third party such as a victim, etc., not a criminal suspect, voluntarily submits a data storage medium that the criminal suspect possesses and manages, even if such voluntary submission and resultant seizure of an investigative institution are legal, more restricted interpretation is required in that electronic information specifically and separately related with the facts information. Thirdly, the Supreme Court ruled that when an investigative agency conducts a search and seizure with the consent of the digital evidence submitter. the investigative agency should confiscate digital evidence only for digital evidence related to the fact of the crime. The Supreme Court also ruled that the right to participate should be guaranteed to the seized person in the process. If electronic information relevant to a suspicion of a crime is found by accident in the process of legally exploring electronic information relevant to facts constituting a suspicion of a crime before a seizure or search of electronic information is completed, an investigative institution should discontinue further exploration thereof, and, only when a warrant of seizure or of search is issued from the court with regard to the facts constituting a separate crime, the investigative institution can legally seize or search such information. Therefore, any evidence acquired by an investigative institution without a warrant of seizure or of search in relation to electronic information beyond the scope of electronic information subject to seizure in a data storage medium voluntarily submitted corresponds to illegally obtained evidence, The author hope to reflect this legal principles as soon as possible in National Assembly because our country is a Statute Law Country.