외국 소재의 전자적 증거 수집 방식과 증거능력 부여 방안에 관한 연구

Abstract

In order for investigative agencies to acquire electronic evidence located in a foreign country, mutual legal assistance based on the International Criminal Justice Mutual Aid Act and Interpol Collaboration are used. In some investigations, legally obtained user account information is used to access overseas servers. The international community has already implemented the European Convention on Cybercrimey, which enables prompt preservation, provision, and submission of digital information for ISPs located in each jurisdiction through cooperation between the central authorities, so orders are also issued to ISPs under direct foreign jurisdiction. The system is being improved in such a way that this way is possible, and the same procedure is reflected in the administrative agreement based on the CLOUD Act and the European Electronic Evidence Regulation. However, Korea has not signed such a treaty or agreement.
 For foreign electronic evidence collected using these means, there is a possibility that the collection procedure of the requested country may violate the domestic law of the requesting country due to the different procedural laws between each country. In such a case, whether the content or degree of the violation violated the actual content of due process and whether the exclusion of evidence is in accordance with the constitutional idea and the criminal procedure law procedure for the realization of criminal justice can be judged individually. However, it is not reasonable to deny the admissibility of evidence based on a simple violation of the procedure on the basis of trust or reciprocity among judicial institutions in the international community.
 On the other hand, non-statement digital evidence is not the truth of the content, but the existence of textual information of the same content itself as evidence. Therefore, it is reasonable to regard such evidence as evidence and not to apply the hearsay rule. Even declarative digital evidence can correspond to business records, and it is possible to confirm and verify the circumstantial guarantee of trustworthiness from foreign institutions in the future. In the end, even for electronic evidence collected in foreign countries through cooperation or cooperation in investigations, it seems necessary to establish a separate exception to the recognition of Probative Force.