임의제출에 의한 전자정보 압수의 적법성 요건으로서의 참여권 보장 - 대법원 2022. 1. 13. 선고 2016도9596 판결 -

In information storage media, a lot of electronic information, including the privacy of the data subject, is mixed. When the information storage medium is arbitrarily submitted and confiscated, it is important to specify the scope of the confiscation and to ensure the procedural rights for human rights protection, compliance with due process. Recently, the Supreme Court issued a series of rulings on this. The target judgment is part of it. In particular, the target judgment considered that the suspect's right to participate was guaranteed when the investigative agency searched for information storage media in the process of interrogating the suspect. However, it is questionable whether the logic of the target judgment is reasonable. When searching, copying, and printing relevant information in an information storage medium, guaranteeing the right to participate is more important due to its nature. This is because the right to participate is not just a procedural right. The suspect's participation in expressing opinions on whether it is relevant or not plays an important role in limiting the scope of confiscation. Therefore, the right of the suspect to participate in the confiscation of electronic information by voluntary submission must be strictly guaranteed. At the time of interrogation, the attendance of the suspect cannot be regarded as participation. The participation of the suspect should be made as an independent procedure in the confiscation execution stage apart from interrogation.