종근당 결정과 가니어스 판결의 정밀비교

A close Comparison of Chong Kun Dang Decision of the Supreme Court of Korea(2015) with United States v. Ganias of Second Circuit ruling(2014)

1. The Supreme Court of Korea (hereinafter KSCt) handed down a very epoch making ruling (abbreviated as ‘Chong Kun Dang Decision’ hereinafter) about the search and seizure of digital evidence in 2015. Until now 7 articles have been published, which took the commenting of this decision as the central theme and did the following discussions seriously. In this paper, I intend to focus on identifying what the Chong Kun Dang Decision means and what are grounds of the ruling rather than criticizing any argument and ground. This is because the conventional analyses are not successful in explaining the exact meaning of Chong Kun Dang Decision. 2. With the Chong Kun Dang Decision, the issue of “the first issuance of warrant for the search and seizure of evidence related to the alleged abuse of trust → the carrying out the execution of warrant(physical seizure ⓐ, removal of the information storage medium at the scene) → ‘physical seizure ⓑ’ (imaging duplication) → searching for digital information (off–site search) → in case of accidental finding of the irrelevant information, does the investigating agent become obliged to delete irrelevant information?” emerged as an urgent issue. Although Lee Wan–gyu (2015) and Park Min–woo (2016) already discussed this issue, a more in–depth inquiry is necessary. 3. The methodology of this paper is as follows. The 2014, US Second Circuit panel handed down a ruling (United States v. Ganias) seems to have given some impression to the formation of a majority opinion (and separate opinion, supplementary opinion) of Chong Kun–dang decision. Therefore, it is necessary to compare precisely the issues and arguments of the ‘2014 Ganias panel ruling’ and the Chong Kun Dang decision. In this context first of all I attempted to reconfigure the facts of two cases for precise comparison in chapter Ⅱ. 4. In chapter Ⅲ, I try to make a precise comparison of the grounds of Chong Kun Dang Decision (2015) and Ganias panel ruling (2014). The focus of the comparisons are as follows. First, is there an obligation to the investigating authority to delete and discard irrelevant information after separating the related information and the irrelevant information? Second, presence of dominion of the investigating authority on the information that contains related information and irrelevant information. Third, why the deletion of irrelevant information become a problem? Fourth, what is the legitimate response of the investigating agency that witnessed evidence of irrelevant crime? Fifth, conflicts between means (due process) and purpose (substantive truthfulness). Sixth, among series of actions taken by the investigating authority what can be considered as the search and seizure measures of digital evidence?