형사소송법 제106조 제3항 단서에 따른 수사기관의 압수에 관한 검토- 피의자ㆍ변호인의 참여권을 중심으로 -

Abstract

The Criminal Procedure Law Article 106(3) defines as follows. ① When the object of seizure is computer disk, or other storage medium of similar digital information, Court should be offered in the form of a printed document or a copy of digital information only to prove the facts of suspicion. ② However, when it is acknowledged that such method is impossible or it seems hard to achieve the goal of seizure, the Court can confiscate the storage medium to save digital information. The Criminal Procedure Law Article 106(3) makes ① a principle, and then exceptively allows court to seize the storage medium. The legislative intent is that protecting the fundamental rights of the submitting person should be respected. When the execution of warrant by an investigative agency with a way of ②, generally an investigative agency acquires digital information to prove the facts of suspicion through several stage: (ⅰ) acquiring and moving storage medium from storage medium location to an office of an investigative agency or other external sites. (ⅱ) making image or logical copy of storage medium, (ⅲ) analysis(including search, recovery, etc), (ⅳ) acquiring digital informations to prove the facts of suspicion. In such cases, the most important two issues are: When the execution of warrant completed at step (ⅰ) or step (ⅳ)? Whether or not in the process of (ⅱ), (ⅲ), (ⅳ), an investigative agency should guarantee the right of continued involvement by persons subject to seizure or their counsel(The Criminal Procedure Law Article 219, 121, 122)? The Korean Supreme Court in its 2009 mo 1190 decision and 2011 mo 1839 decision clarified that the execution of warrant is completed at step (ⅳ) and an investigative agency must guarantee the right of continued involvement by persons subject to seizure or their counsel in the entire process, and prohibited the process of (ⅱ), (ⅲ), (ⅳ) by an investigative agency without the presence of those subject to seizure. Supreme Court’s intent may be to present guidelines to substantively guarantee a suspect’s right to informational self-determination and right of defense. But, on presents another view that the execution of warrant is completed at step (ⅰ), because The Criminal Procedure Law Article 106 says that storage medium to save digital information can be the object of seizure, and in the process of (ⅱ), (ⅲ), (ⅳ) by an investigative agency The Criminal Procedure Law Article 121(execution of warrant and presence of persons subject to seizure or their counsel) can not be applied after step (ⅰ) is completed. In this paper, I argue that in the process of (ⅱ), (ⅲ), (ⅳ) an investigative agency must guarantee the right of presence of persons subject to seizure or their counsel, to protect the fundamental rights of person subject to seizure, on the other hand, that the right of presence of persons subject to seizure or their counsel can be excluded when there is a probable cause, for example, interference with the investigatory process by such persons, in order to exercise legitimate state punishment power.