압수수색에 있어서 ‘필요한 처분’의 의미와 해석 ― 일본, 미국과의 비교법적 검토를 중심으로 ―

Article 120 of the Korean Criminal Procedure Code outlines the execution and necessary disposition of search and seizure warrants. Paragraph 1 states that the execution of a search and seizure warrant may include opening the premises or other necessary dispositions. Paragraph 2 allows for the same disposition to be made on the seized goods. Article 219 applies to the execution of warrants by investigative agencies. However, the concept of ‘other necessary disposition’ can be ambiguous and abstract, which may cause difficulties in interpretation and doubts about the meaning of the above provisions. In this article, I examine the meaning and interpretation of the necessary disposition provision in relation to the execution of search and seizure warrants. In the past, the provisions only confirmed the use of physical force by investigative agencies to achieve the purpose of seizure. However, with the development of technology, these provisions are now being used as a basis for the exercise of tangible force or other disposition to achieve the purpose of seizure for complex events occurring at the scene of the seizure. This trend is developing in practice and case law. In certain situations, taking photographs to accompany a search, entering a dwelling before executing a search warrant, developing seized film, and accessing usernames and passwords lawfully obtained during a remote search of electronic information may be considered discretionary searches or intermediate measures between discretionary searches and compulsory dispositions. These measures are less intrusive on fundamental rights and may therefore be included in the required disposition. However, the detention in a hospital under a forced urination warrant constitutes a form of coercion. Therefore, a separate warrant should be devised for this purpose. The necessary disposition acknowledges the investigating authority's discretion regarding the circumstances preceding, during, and following the execution of a search warrant, but not the search itself. Its practical significance lies in determining whether the violation of fundamental rights can be linked to the illegality of the evidence obtained by the search warrant and constitute illegally obtained evidence in cases of gross deviation or abuse of discretion.