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KCI등재 학술저널

디지털 증거 압수수색 시 영장 범죄사실과 ‘관련성 있는’ 증거 해석 기준과 무관 증거 발견 시 증거 확보 방법

대법원 2018. 4. 26. 선고 2018도2624 판결

Today it is the time of digital evidence. Most of people can use computer, mobile and so on. And they can produce a lot of information. So whether investigation agency can search and secure digital evidence properly depends on the success of investigation. If some investigation agency wants to know whether some digital data has the relevancy with the case, she has to click the file and read the content. Because of these properties of digital evidence, most of digital evidence is the object of ‘plain view’. Digital data consists of criminal evidence(relevancy with the case) and etc data. If law enforcement agency interpretates criminal fact on warrant very narrowly(restrict raw-language), she may not arrive the truth of the case. The purpose of search and seizure is to secure evidence. After search and seizure, the suspicion is embodied. The fundamental reason for specifying a warrant is to prevent abuse of compulsory disposition. There is no such concern if the underlying(basic) facts are the same as the facts of warrant crimes. If another crime(not relevancy with the case) is found separately, the court must control it as another warrant. The court can control the evidence in court. Digital storage devices can hold an enormous quantity of data. Because of the properties of digital evidence, there is a concern that the search and seizure of digital evidence may become a general warrant. But it is no different from seizure of property if the underlying facts are the same as the facts of warrant crimes. Besides digital evidence can easily be concealed, destroyed. So it has to be interpretated basic crime more flexible. And it should be introduced urgent search and seizure not to destroy evidence.

[대상 판결]

Ⅰ. 문제의 제기

Ⅱ. 무관 증거의 해석 기준과 무관 증거 발견시 증거 확보 방법

Ⅲ. 맺음말

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