수사상 디지털증거 압수수색 제도의 참여권에 관한 고찰

Article 219 of the Criminal Procedure Law stipulates that even a suspect in the investigation stage is guaranteed the right to participate in execution of a seizure warrant which is the same extent as the defendant is guaranteed in the execution of a seizure warrant in court. However, unlike the Criminal Procedure Act, the Enforcement Decree of the Criminal Procedure Act and the internal regulations of the investigative agency stipulate the right to participate focusing on the seized, not the suspect, and the judgment of the Supreme Court was the same. In this paper, we examine the participation rights of defendants, suspects, and those subject to search and seizure from this perspective. In addition, this article examines the newly established system for issuing copies of search and seizure warrants from the viewpoint of investigation, and discusses expected problems and side effects. With the development of information and communication services, the need and cases of seizure and search of third-party Internet service providers are increasing. Therefore, problems and improvement plans were presented by applying and reviewing relevant cases for the existing procedural regulations of the Criminal Procedure Act. Despite the seizure and search for services provided using the Internet, the fact that the original copy must be visited and presented in person because the execution of the search and seizure warrant cannot be transmitted or executed using the Internet means that the criminal procedure is not being able to follow the changing environment of the times. There has been a case where it was decided that the execution of a search warrant entrusted to an Internet service provider cannot be viewed as illegal, and in the case of execution of the seizure warrant in this consignment method, the investigative agency does not directly search and select digital evidence, and there is no possibility that the investigative agency will collect information unrelated to the criminal charges listed in the warrant. Thus, it is not be seen that there is any value or meaning to be realized through the participation of the suspect. In addition, in this way, if the executor receives the information to be seized without directly selecting it, it is desirable to make an exception rule that it is not necessary to separately issue a seizure list to the provider. Lastly, because protection of the right to personal information and privacy is an important requirement in society, even when a warrant is presented to a person subject to execution of a search and seizure warrant, if he is a third party other than the suspect, it must be considered and respected from the viewpoint of protecting the privacy of the suspect based on the principle of presumption of innocence, which is a major principle of criminal law.