독일의 온라인 수색과 IT 기본권

Abstract

The Telegram ‘N’ Room incident that shook the Republic of Korea in March 2020 raised the need for a further investigation into digital sexual exploitation. In other words, existing methods have limitations in investigation due to the changing digital environment and the development of encryption technology, and some inevitable measures were needed to ensure national security and maintain order for serious crimes that violate people's lives and freedoms. Major countries have already legislated a system called online search in preparation for security crimes such as terrorism as well as transnational cyber crimes such as digital sex crimes. Considering the reality of cybercrime, which is difficult to investigate only with existing methods such as seizure and search, it is time to actively consider the introduction of online search. However, these actions relate to fundamental rights under the Constitution. Therefore, the authorization regulations that legislate online search must meet constitutional requirements to justify the restriction of basic rights. In this regard, in the case of Germany, an online search system was introduced in 2016, and the constitutional judgment of the Federal Constitutional Court is also published. Based on the Federal Constitutional Court's ruling, Germany judged the online search itself to be constitutional, but the Federal Criminal Investigation Agency Act and the Criminal Procedure Act were revised to supplement the contents of online search and crypto communication monitoring. Through these discussions in Germany, we will be able to gauge our direction on the introduction of online search.