새로이 입법화된 디지털 증거의 압수ㆍ수색제도에 관한 연구

A Study on the Search and Seizure of Digital Evidence in Amendment Criminal Procedure Acts

Criminal Procedure Amendment Act was revised in 8 Jury 2011, and will be enforced in 1 January 2012. Its article 106 states that the court can order seizure of any evidence or forfeit only if that evidence or forfeit is believed to be related to crime. In the same context, Article 215 is also revised. It states that seizing evidence in the procedure of investigation is allowed only under the suspicion related to a crime. Under Article 106(3), which is newly added, the information in the digital device must be printed or duplicated instead of seizure of the digital device itself. But, if it turns out impossible or hard to achieve the purpose of seizure, then seizing the memory device itself can be allowed. The main reason of this article is obtaining the data saved in the computer’s memory storage, which can prove the criminal charges, rather than using the computer itself as evidence. Digital evidence or electronic evidence is probative information stored or transmitted in digital form. A party to a court case may use it at trial. Before accepting digital evidence, a court will determine if the evidence is relevant, whether it is authentic, if it is hearsay-evidence, and whether a copy is acceptable or the original is required. Digital evidence tends to be easily eliminated modified and duplicated. Digital evidence is often attacked for its authenticity due to the ease with which it can be eliminated or modified. Digital evidence is often ruled inadmissible by courts because it was obtained without authorization. The intangible information cannot be viewed in the eyes nor defined in any forms. Evidence may not remain at place where a criminal activity has occurred. It is therefore necessary to have the special knowledge and skills for efficient investigation. This paper states my views regarding additionally needed criminal procedural legislative reforms. First of all, the term ‘informaton’ should be included as object of search and seizure in Article 106. Next, it is necessary to impose a duty on digital server to preserve the digital data as object of seizure. Furthermore, search and seizure should be made possible as long as the network is connected to the serve, although the warrant does not specify the place on server. Finally, it is needed to create regulations related to the admissibility of digital evidence under hearsay rules.