디지털 증거에 대한 압수수색제도의 개선

Abstract

Owing to the development of computer and network, modern society is facing the digital environment in every sectors of life, and data produced by individuals, enterprises, or government are basically grounded upon computer processes, while data already produced are converted into digital data. In the society where internet is commonly used, through the Information Superhighway Network, digital evidence achieves important meaning that is not to be overlooked. Since seizure and search is legal disposition that limits civil rights, the principle that legal disposition should be ruled by law, the rule of warrant, and the principle of proportionality should be applied to them. Yet, warrants are more easily issued for seizure and search compared to arrest and detention. Excessive seizure and search of investigation agents on documents or computers of enterprises have been criticized and the necessity of regulating seizure and search on private digital data, such as emails, are being raised. In seizure and search on digital evidence, the purpose of effective collection of evidence, and the value of protecting trade secrets of enterprises and privacy may conflict. Concerning seizure and search of digital evidence, drafts of Criminal Procedure Act amendment have been discussed since 2009, and was promulgated in 18th July, 2011 (Act 10864), coming into force from 1st January, 2012. It is now the time to settle reasonable seizure and search system on digital evidence which can balance the two contrasting values.