최신 디지털 증거 관련 판례 분석(4) - ‘압수 대상의 특정’, ‘전자정보 상세목록의 의미’, ‘은닉한 전자정보에 대한 수색과 압수’, ‘분실한 휴대폰과 압수수색’을 중심으로

In the case of electronic information seizure and search, the courts seem to be increasingly strict in their stance on compliance with procedures. In this issue, we will examine recent Supreme Court precedents regarding <specification of seizure targets, meaning of detailed electronic information lists, search and seizure of hidden electronic information, and search and seizure of lost mobile phones>. The court stated that <unless ‘remote server-stored electronic information’ is specifically specified in the items to be seized under a warrant, it cannot be said that a remote server is included> (Supreme Court Decision 2022do16718, November 9, 2023) and stated that it must be clearly specified as electronic information stored on a mobile phone (Supreme Court Decision 2024mo2020, September 25, 2024). In other words, the ‘items to be seized’ must be strictly interpreted, electronic information on a remote server has different content and quality and must be interpreted differently from electronic information stored on computers or other information processing devices, and in order to seize a mobile phone, the characteristics of the mobile phone must be taken into consideration; it cannot be interpreted that the mobile phone is included in a general information processing device or information storage medium, but it must be explicitly stated that it is a mobile phone, a separate explanation is required for the reason for the seizure, and the court must make a judgment by taking into account the special characteristics of mobile phones, which are different from the seizure of general information storage media. This appears to be the court’s position. The purpose of the investigative agency creating a detailed list of electronic information is to provide the subject of the seizure with an opportunity to confirm what was seized and file an objection, so if the detailed list of electronic information was created without selecting the electronic information at all and by describing the entire image so that even the individual file names cannot be known, it would be illegal (Supreme Court Decision 2021Mo1586, January 14, 2022). On the other hand, some recent court decisions raise questions about whether the direction of precedents in the seizure and search of electronic information is correct. This is because the recent court ruled that even if the electronic information was actively hidden to conceal a crime, the investigative agency must thoroughly follow the general procedures for the seizure and search of electronic information. Even if the suspect is well aware of his/her crime and actively conceals the ‘relevant’ electronic information in preparation for search and seizure, the electronic information ‘selection procedure’ must be followed ‘with the participation’ of the subject of seizure (if electronic information related to the crime and electronic information that is not related are mixed). Those who actually destroy evidence are sentenced to imprisonment or other guilty verdicts (appeal trial is ongoing, Seoul Central District Court 2019. 12. 9. 2019gohap419, etc.), but those who commit the crime that they tried to hide by destroying evidence are declared not guilty because the evidentiary value of electronic information, which is the main evidentiary material, is not recognized (Supreme Court 2025. 7. 17. 2025 do2805 decision). This is an ironic situation. In addition, it was repeatedly stated that in the case of remains, a warrant must be requested immediately when materials that are ‘suspected’ of a criminal charge are confirmed (Supreme Court Decision 2024do12820, 12689, January 9, 2025). I agree with the concerns about limiting the search and seizure of electronic information, but it is time for a more in-depth discussion so that the method can be rational. Furthermore, it is necessary to continuously discuss what the limits of legal interpretation are and whether the court is reaching a reasonable conclusion in a specific case in line with the ideology of criminal proceedings, which is to discover the substantive truth and implement justice through due process. In particular, I hope that we will move forward with a judgment based on the common sense and experience of the people based on the principle of proportionality.