형사소송법 제218조의 유류물에 관한 소고

The provisions on investigative seizure, search, and examination are organized in a format that starts with Article 215 of Criminal Procedure Act as the basic provision, followed by Articles 216, 217, and 218 as exceptions. Article 215 provides for ex ante warrant, and Articles 216 and 217 provide for ex post facto as an exception to ex ante warrant. The fact that Articles 216 and 217 impose relatively stringent requirements as exceptions to Article 215, while Article 218 is not subject to warrant at all, can be seen as a reflection of the judgment that in certain cases, it is not reasonable or necessary to subject a person to the control of warrants. These special circumstances are recognized as “discretionary submissions. If the submission is recognized as voluntary, there is no violation of fundamental rights. In this sense, it should be viewed as an arbitrary investigation. In addition, the parallel provision in the same article, organic matter, should be understood in relation to voluntary submissions. Organics are similar in structure to voluntary surrender in the sense that they have relinquished ownership, and in the case of lost property, voluntary surrender by the custodian or possessor does not require a warrant. Therefore, both organic matter and lost items fall under Article 218, and the legal nature of the seizure should be considered as a discretionary investigation. Even if it is an arbitrary investigation, the principle of constitutional due process applies, so the right to participate should be guaranteed if the target is electronic information.