디지털 증거의 긴급한 보전을 위한 법제 개선 연구

A Study on Improving the Legal System for the Expedited Preservation of Digital Evidence

The proportion of digital evidence in criminal cases has increased, while at the same time, the spread of the Internet has made it easy to delete information that is stored in another place and thus, the Internet is being used to delete online criminal evidence. To respond quickly and effectively to cybercrime, 29 countries signed the Convention on Cybercrime in 2001 through the Council of Europe. Article 16 of the Convention relates to the expedited preservation of stored computer data and requires signatories to adopt legislative measures to enable its competent authorities to order expeditious preservation of specified computer data where there are grounds to believe that the data is particularly vulnerable to loss or modification. More than 60 countries have joined the Convention since 2001 and have made efforts to improve their legal system in line with it. The United States legislated 18 U.S.C. § 2703(f) to preserve electronic evidence pending the issuance of a court order. The German Code of Criminal Procedure §§ 94~95 allows prosecution authorities to seize evidence or issue production orders without court control in urgent circumstances. A custodian shall be obliged to surrender evidence upon a request that evidence be preserved, and non-compliance results in punishment. Japan legislated the Criminal Procedure Act § 197(3) and (4) to establish a legal base for requesting that electronic records that are stored by an ISP not be deleted. The Korean Criminal Procedure Act § 184 outlines procedures for the preservation of evidence but does not adequately address the expeditious preservation of digital evidence that may be vulnerable to deletion. This paper analyzes nine considerations, including request subjects, requirements, and cost reimbursement to establish directions to improve the legal system for the expedited preservation of digital evidence. A new method to preserve online digital evidence in urgent cases is necessary.