제3자 보관정보 압수․수색 참여권에 대한 비판적 고찰 (대법원 2022. 5. 31.자 2016모587 결정 등 참여권 관련 최근 국내외 판례)

In recent years, the right of participation (of the suspect) in the search and seizure process has been emphasized. The right of participation is a unique legal doctrine in South Korea and is somewhat rather controversial, but it has a clear meaning considering Korean investigative environment. Therefore, it is desirable to guarantee the right of participation in principle even if the suspect is not the subject of the seizure. The Supreme Court decision analyzed in this article is significant in that it declares this principle. However, there are also clear limitations. In finding a compromise that takes into account the realities of investigations while strengthening the right to participation, the Supreme Court recognized a wide range of exceptions. And those exceptions create even more participation gaps in the evolving internet environment. In the so-called “cloud era,” most of these exceptions are likely to be recognized, so the right to participate, while guaranteed in principle, is unlikely to mean much in practice. Since 2010, the jurisprudence on the right to be present during a search has been elaborated to take into account the ‘nature of the information’, but it seems to have been developed with the search of specific storage media in mind. The cloud era requires a new approach. It’s worth considering the implications of the U.S. government’s raids on Google. The right to participate is only one way to ensure rights. Rather than relying too heavily on physical participation, we need to consider the underlying values that the right to participate is intended to protect and create appropriate search practices for the new era. In particular, given that raids on data storage providers are likely to continue to increase, it would be advisable to create a more specific protocol for this and include it in the warrant attachment so that it is binding in the execution of the warrant.