전자정보 역외 압수･수색의 입법 개선 방향에 대한 소고

Abstract

Today, the exchange of information is mostly done through electronic media. The utilization of services that store data in the network is also increasing. This changed modern lifestyle led to a change in the form of evidence, and most of the evidence existed in the form of electronic information. Not only can digital evidence be digitized and stored, but it can also occur the possibility that the information is stored on overseas servers. The term “Offshore seizure and search” refers to a seizure and search method in which an investigative agency accesses an overseas server using the account information of the investigative agency or designated place to secure relevant evidence when it finds out the account ID and password of an investigated person's overseas server. There are various discussions on the procedural legality, such as the Seoul High Court making different rulings on these methods of seizure and search. The current Criminal Procedure Act regulates digital evidence through the proviso to Articles 106 (3) and 4 and 114 (1), but offshore seizure and search are only indirectly regulated through Article 120. The “necessary disposition” of Article 120 (1) of the Criminal Procedure Act allows offshore seizure and search procedures, and the law takes “opening or opening a gun,” but there is disagreement on whether accessing an overseas server and obtaining digital information can be seen as a similar procedure. As such, the current Criminal Procedure Act was revised as digital evidence increased, but there is a limit to properly regulate evidence in a rapidly changing modern network environment. As previously confirmed, the Supreme Court seems to be trying to resolve the blind spots of the Criminal Procedure Act by establishing strict legal principles on the procedure while affirming offshore seizure and search through precedents. In the case of the United States and Germany, the institutional basis for offshore seizure and search is established through the revision of the law, while regulating its restrictions to explore the truth and minimize infringement of basic rights. The Korean Supreme Court is also developing the law of offshore seizure and search through the 2020 14654 and 2022 1452 rulings, but it will be difficult to secure legal justification for the collection of electronic information evidence that will gradually diversify only with the expanded interpretation of Article 120 of the Criminal Procedure Act. In order to solve these problems, it is necessary to stipulate procedural regulations through the specification of offshore seizure and search requirements. Since seizure and search are procedures that limit the basic rights of private persons, it is believed that the procedures and requirements stipulated by law will not contradict general principles of criminal law, such as the principle of due process, compulsory disposition, or prohibition of analogical interpretation. As the Supreme Court of Korea also establishes legal principles to protect the seized through rulings, it is necessary to stipulate these legal principles to protect the basic rights of the seized from excessive infringement. International legal cooperation should also be strengthened. Since the world, such as the Cyber Crime Convention, has some consensus to jointly respond to cybercrime, efforts should be made to give legal grounds not only for domestic law but also for international law, such as signing separate investigation cooperation agreements. If the law is revised to establish domestic legal regulations for offshore seizure and search procedures as a follow-up to the recent ratification of the Cyber Crime Convention, the stability of our criminal procedure law can be improved by giving legitimacy to remote seizure and search procedures.