최신 디지털 증거 관련 판례 분석 (1) - ‘범죄사실 관련성, 참여권, 압수할 물건의 범위’ 중심으로

The ‘Chong Kun Dang’ case, decided by the Supreme Court on July 16, 2015, stands out as a significant milestone in the realm digital evidence capacity. Since then, the general trend of court rulings can be observed as establishing precedents aimed at constraining the search for and seizure of digital evidence by investigative agencies. Before and after 2022, the Supreme Court appeared to have set precedents based on new logic concerning digital evidence. In this regard, we examine the latest Supreme Court rulings on standards for interpreting criminal facts and relevance, the interpretation of the right to participation, and the search and seizure of electronic information from remote servers. In the assessment of the standards for interpreting crime facts and relevance, the Supreme Court’s position tends to vary from case to case, leading to ambiguity in the standards. In my view, determining the relevance of a crime should rely on common sense and empirical rules. Additionally, the severity of the discovered crime compared with the warranted crime should also be considered. On November 18, 2021, the court announced an en banc decision that expanded the scope of participation rights, ensuring these rights not only for the confiscated suspect but also for the ‘actual’ confiscated suspect. However, challenges persist in adhering to these rules. The court clarified that when a third party arbitrarily submits a camouflaged hidden camera owned by a suspect, the suspect’s right to participate need not be recognized. Furthermore, the court ruled that individuals who effectively controls and manage the information storage medium during search and seizure, visually and objectively, qualify as the actual confiscated persons. This includes ISPs, etc., who possess the right to participate as de facto confiscated persons in the data selection process conducted by an impartial third party. Moreover, as this interpretation aims to uncover the actual truth and promote harmonious interpretation, the concept of a substantive confiscated person was interpreted as a departure from existing position, emphasizing judgement based on the facts of the crime. However, the minority opinion contended that ‘the majority opinion’s narrow understanding of the ‘actual confiscated person’ doesn’t fully align with precedent’s purpose and direction, emphasizing the need to protect interests focusing solely on the suspect of the crime prompting the search and seizure. Furthermore, the court did not specify that the items subject to confiscation were remotely stored electronic information. Consequently, the court used the Google account login status of the mobile phone to access Google Cloud, a remote server, and seized illegal footage found on Google Cloud, without due process and a warrant. This ruling goes against the principle of caution. According to the court, even though there is a cloud accessed through automatic login, illegal recordings may exist. Therefore, a new search and seizure warrant must be obtained. The investigative agency lacks the authority to prevent the defendant from deleting crime evidence or changing the password once the warrant is requested and issued. It is impossible to prevent defendants from altering their automatic login. In our legal system, which lacks an emergency search and seizure system and where the self-destruction of evidence is not penalized, this could inevitably result in overlooking serious crimes by defendants, posing potential problems.