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KCI등재 학술저널

디지털 증거 압수절차의 적정성 문제

피압수자 참여 범위 및 영장 무관 정보의 압수를 중심으로

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The 2011Mo1839 ruling of the Supreme Court of Korea decided on July 17, 2015 that the course of retrieving the data storage device or the legally copied files, printing and copying the information related to the accused case is regarded as a part of the total search and seizure procedure under a warrant. And the ruling described that those printed and copied objects are limited to the scope which is relevant to the accused crime under a warrant. In addition to that, the Court ruled that during the total course of retrieving, printing and copying, the presence right of those subject to seizure shall be guaranteed. By the ruling, it would illegal to print and copy relevant digital files mixed with information which is not relevant to the accused crime or not to guarantee the presence right of those subject to seizure. This ruling maintains a point of view the Court s 2009Mo1190 ruling. Especially, the requirement that seized articles shall be deemed to be relevant to the accused case has benefits of making general searches under warrants impossible and preventing the seizure of things irrelevant to the case under a warrant. But those rulings are open to a lot of questions if the balance with the due process law and the truth-finding function of the criminal justice process is being maintained. There are various opinions about the construction and interpretation of the Criminal Procedure Act, such as the object of seizure, the time of completing the search and seizure, the scope of those whose presence right are guaranteed, the difference between physical evidence and digital evidence in the execution of search and seizure warrant. If it is not sure when the search and seizure is completed, the procedural guarantee including the presence right would make the truth-finding function and the legality of search and seizure highly fluid and unsettled. And those confusion and inappropriate restrictions will cause the execution inefficiency of the warrant and impose a substantial burden upon the administration of the criminal justice process. Therefore, enthusiastic discussions of digital evidence seizure should proceed and lead to a law-making solution to strengthen the truth-finding function of the criminal justice process while preserving the due process law.

[대상결정] 대법원 2015. 7. 16.자 2011모1839 전원합의체 결정

[연구]

Ⅰ. 들어가는 말

Ⅱ. 디지털 증거의 압수절차상 피압수자 참여범위 등의 적정성

Ⅲ. 영장의 범죄사실과 무관한 정보의 압수 문제

Ⅳ. 결론

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