디지털 증거 압수의 시간·장소 적용범위 규정과 압수물 폐기 절차 개선방안을 위한 연구

Abstract

Today cyber crime is not told apart from general crime like it once was in the past. As the advancement of methods in cyber crime has made it a tool for general crime, there is no need to separate them. For example, swindlers cheat victims by using the Internet or smart phones; libelers use digital devices to post malicious or false contents to damage the victim’s reputation. A series of actions by which law enforcement agency retrieves evidence on the digital device used by criminals and tracks down network traces to apprehend them is called cyber investigation. In order to prove a criminal suspect guilty, digital evidence must be obtained and presented to the court through ‘digital forensic’. But we cannot find the word ‘digital evidence’ in our criminal procedure law. Because seized article in the law is simply defined as ‘an object’ to be seized, digital evidence is vulnerable to be contaminated or damaged as the procedure and methods of its seizure is the same as that of general material object. In this thesis, therefore, we examine how to supplement the criminal procedure law in order to correctly define digital evidence and understand its attributes so that its search and seizure can be carried out in due process and manner, and suggest how to protect basic rights of suspects such as privacy and commercial confidentiality by for example ensuring suspect’s right to participate in the procedure of search and seizure. Digital data must go through a digital forensics process in order to be used in the court, and the suspect’s right to participate in the process must be guaranteed. Regarding the duration of digital evidence collection process, however, it has been agreed that it begins with the execution of a warrant, but opinions are divided on at which point it ends: once the evidence is retrieved from the scene or when the inventory of seized articles is provided after the retrieval, which we clarify by reviewing theories and case law. Then we go on to clarify the spacial scope of the digital evidence seizure process, whether to limit the scope to what’s on the warrant or to extend it to include destinations through network, also by reviewing theories and case law. Another challenge involving digital evidence which nullifies national boundaries moving through network is the procedure and methods of overseas investigation where domestic warrants are not effective. We compare case laws of different countries and international treaties to address this issue. Lastly, we look at the procedure and methods to dispose seized digital article after it is retrieved and when the final court issues a disposal order because digital evidence due to its ease of cloning is seized in a form of replicated article and thus still exists in the storage of the suspect which is contrary to the intent of seizure of depriving the possession. The conclusion is to suggest that the criminal procedure law stipulate these procedure and methods in it and how.