전자정보의 압수수색에 있어 정보검색의 성격과 피압수자 참여권 보장의 의미

The Meaning of the information retrieval and Right to participate in the Search and seizure of electronic information

Digital evidence causes various problems in the process of Search and Seizure due to its unique illegibility, large capacity nature and easy falsification availability. Therefore, the subject to Search and Seizure, equality with the original, range of case relevance and limit of ensuring the participation right have been discussed in the academic world and the key point is the restriction on the Search and Seizure of electronic information. In this study, it was confirmed whether information became the subject to Search and Seizure or not and the meaning of case relevance in Search and Seizure was also confirmed. And, the nature of information search process and the meaning of ensuring the participation right in such process were reviewed. In this study, it was confirmed that the intent of securing the participation right in the Search and Seizure was to prevent a possibility of infringing the rights of those subject to seizure in advance and realize a fair trial through securing of integrity of electronic information while understanding the information search process as the execution process of Search and Seizure. Finally, the target precedent was analyzed. The majority opinion of the Supreme Court indicated that the first procedure of seizure, the second procedure of seizure and the third procedure of seizure for the target case were considered as one act of Search and Seizure and it was necessary to judge the illegality of each procedure as a whole. However, it was demonstrated in this study that it was necessary to judge the illegality of each procedure separately agreeing with the idea that taking out of media was understood as a process of Search and Seizure. Accordingly, the first procedure in the target precedent cannot be considered as illegal since the case relevance was acknowledged as search and the participation right was ensured, but the second and third procedures are illegal because the participation right of those subject to seizure was not ensured.