수사기관에 보관중인 압수된 전자정보의 재압수에 관한 최근 판례 동향

In the current investigative environment, where digital evidence, especially electronic information stored on a suspect’s smartphone, is not only a clue to solving a case but also a decisive contributor to the success or failure of an investigation, the demand for seizure and search of smartphones is expected to continue to increase, not only in some special investigations such as anti-corruption, but also in virtually all areas of criminal cases such as public security, sexual violence, property crime, drugs, organized crime, and voice phishing. In addition, in order to prove the identity and integrity of the original file and to ‘reproduce or verify digital evidence in court’, the entire extracted information of the smartphone, so-called ‘full image’, is also stored in the digital evidence management system of the investigative agency, and whether it can be re-seized in a separate investigation has recently been an issue and significant judgments have been handed down. First, there is a ruling that (1) electronic information other than electronic information seized through the selection procedure must be immediately deleted, destroyed, and returned, but the reseizure of such information in a separate case while the investigative agency kept it is not permitted, and (2) the reseizure of such information in a separate case while the investigative agency kept it in a widespread manner is not permitted, even though it should have been destroyed immediately after the court acquitted the defendant of the charges that caused the seizure of the electronic information at the latest, as the need for preservation is no longer necessary. As a result, the indefinite storage of so-called ‘full image’ in the digital evidence management system of the investigative agency may seriously damage the fundamental rights of the information subject, such as ‘secrecy and freedom of private life’, and there is an ever-present risk of further exposure in the form of reseizure in a separate case, so it is necessary to limit the indiscriminate and easy acquisition of evidence in a separate case in the form of reseizure, Specifically, (1) the so-called ‘screened images’ that store selected electronic information lawfully seized and searched in the present case, (2) there are special circumstances in which the information is stored only in the digital evidence management system of the investigative agency due to the inability to trace the original smartphone and other digital devices, and (3) it is time to consider the proposal to establish a ground rule to exceptionally allow reseizure only to the extent that the relevance between the present case and the separate case is recognized. In addition, it is necessary to more rationally and clearly stipulate the end date of the storage of seized electronic information stored in the digital evidence management system of the investigative agency through its own management regulations.