디지털 정보의 수사방법과 규제원칙

Digital Evidence Investigation Practice and its Regulatory Principles

The current practices of investigation, even in the traditional and general types of crime, none the less of the computer related crime, requires seek and seizure of digital evidences. The investigators and prosecutors are frequently utilizing the digital techniques in locating and collecting related digital evidences in the site of operation or upon carrying out inspection on the questioned premises. More often than not, rendering investigation creates constitutional issues of individual privacy infringements. These legal issues gives profound grounds for legal enforcement officers to obtain the legitimate seek and seizure warrants from courts. However, in terms of forms and manners, the collection of digital evidence is quite a different from that of traditional physical evidences. Digital evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial. On the other hand, the digital evidence itself may hardly be identified from our raw eyes without the aid of its running program, since they actually consist of digital number 0 or 1. Also it is non-tangible information which incapable to be sensed. With this regards, compared to physical evidences, electronic evidences are uneasy for law enforcement officers to predict the exact information of locations, and relevancies with targeting presumed criminal allegations when preparing for the seek and search warrants due to overwhelming size of the information stored in each mass servers, hard disks etc. Also, with the current development of computer technology, criminals are allowed to operate their planned schemes globally using foreign servers, which give serious obstacles for investigators even computer professionals to identify and confirm the evidence necessary due to international jurisdiction barriers. Despite the acknowledgement of realistic, the Korean criminal procedural law and various related regulations has not yet revised or introduced the definite legal bounds and justifications for collecting digital evidences, especially, when prosecutors are carrying out motion for the seek and search warrants. In particular these loop wholes of criminal rules and items apparently and intrinsically arouse the further violation of due process of law and therefore, ruling out evidentiary values. Certainly there explicitly should exist legal limitations in presenting interpretation laws, which could not be accommodated within law, thus, leading to unduly misinterpretation of the relevant laws. Backing upon these issues, I would like to develop on this work from scrutinizing current digital investigation practices of Korea against present Korean Criminal Procedural Regulations and give some recommendations regarding future Criminal Procedural legislative Reforms.