전자정보에 대한 압수·수색의 참여권, 실질적 피압수자의 개념의 등장과 흐름 - 대법원 2023. 9. 18. 선고 2022도7453 판례과 관련하여 -

노신정 아주대학교 법학연구소 2024 아주법학 Vol.17 No.4

최근 대법원은 증거은닉범이 본범으로부터 증거은닉을 교사받아 소지·보관하고 있던 본범 소유·관리의 정보저장매체를 피의자의 지위에서 수사기관에 임의제출하였고, 본범에게 그 정보저장매체에 저장된 전자정보의 탐색·복제·출력 시 참여권을 인정하지 않더라도 위 정보저장매체의 전속적인 관리처분권을 포기하였거나 양도한 이상 본범은 실질적인 피압수자에 해당하지 않는다고 판단하였다(대법원 2023. 9. 18. 선고 2022도7453 판결). 이는 그동안 확립된 대법원의 논리와는 다소 상반된다. 그간 대법원은 전자정보가 담긴 저장매체 또는 복제본을 수사기관 사무실 등으로 옮겨 이를 복제ㆍ탐색ㆍ출력하는 경우에도, 그와 같은 일련의 과정에서 법 제219조, 제121조에서 규정하는 피압수ㆍ수색 당사자(이하 ‘피압수자’라 한다)나 그 변호인에게 참여의 기회를 보장하도록 하였다. 또한 위 피압수자에 ‘실질적 피압수자’ 개념을 도입하면서 압수ㆍ수색 당시 전자정보가 담긴 저장매체에 대해 현실적으로 지배ㆍ관리ㆍ이용하며, 전속적인 관리처분권을 보유ㆍ행사할 것을 요구하였던 것이다. 이하에서는 대법원 2023. 9. 18. 선고 2022도7453 판결의 주요내용을 소개하며 정보저장매체에 저장된 전자정보의 탐색·복제·출력 시 ‘실질적 피압수자’의 참여권에 대한 대법원의 태도를 정리하고, 대상판례와 비교하여 검토하기로 한다. Recently, the Supreme Court ruled that even if a person who hid evidence (hereinafter referred to as the "evidence-hiding perpetrator") submits to investigative authorities a storage medium owned and managed by the principal offender, which the evidence-hiding perpetrator possessed and kept after being instructed by the principal offender to hide evidence, and even if the principal offender is not granted the right to participate in the exploration, duplication, and printing of electronic information stored in the storage medium, if the principal offender has waived or transferred the exclusive management and disposal rights over the storage medium in question, the principal offender is not considered the substantive target of seizure. This ruling differs somewhat from the established logic of the Supreme Court. Previously, the Supreme Court ensured the opportunity for participation to the targets of seizure and search (hereinafter referred to as the "target of seizure") and their defense counsel even when moving storage media or duplicates containing electronic information to the offices of investigative agencies for duplication, exploration, and printing. Additionally, by introducing the concept of the "substantive target of seizure," the Supreme Court demanded that the target of seizure exercise practical control, management, and use of the storage media containing electronic information at the time of seizure and search and exercise exclusive management and disposal rights over it. Below, we will summarize the main points of the Supreme Court's ruling in its decision of September 18, 2023 (Case No. 2022do7453) and review the Supreme Court's attitude towards the participation rights of the "substantive target of seizure" in the exploration, duplication, and printing of electronic information stored in storage media, comparing it with relevant precedents.

준항고의 취소대상으로 압수․수색 중 ‘수색’처분만 취소가 가능한지 여부

노신정 경상국립대학교 법학연구소 2024 法學硏究 Vol.32 No.1

대법원 2022. 11. 8.자 2021모3291 결정은 준항고의 법률상 이익, 참여권 보장의 범위, 압수 대상의 위법성, 취소의 범위 등에 관하여 판시하였다. 구체적으로, 대상결정은 “피준항고인이 국회 사무실을 ‘수색’하였으나 ‘압수’한 물건이 없고, 수색처분 역시 종료하였으며, 그에 따른 ‘결과물’이 존재하지 않는 것도 사실이지만, 위법한 수색에 뒤따르는 압수가 없는 경우에도 수사기관의 위법한 수색 처분에 대하여 적절하게 통제할 필요가 있는 점, 위법한 수색으로 인해 국민의 기본권 침해가 발생하였다면 이를 회복시켜 줄 필요가 있는 점, 준항고인은 영장 집행에 따른 결과를 소멸시켜 달라는 것이 아니라, 위법한 영장의 집행을 취소해 달라고 요구하고 있는 점, 준항고인은 본건 영장집행과 관련하여 공무집행방해로 고발을 당하였으므로, 본건 집행의 위법성이 확인되는 경우 위 혐의로 처벌받지 않을 수 있다는 직접적이고도 구체적인 이익이 있는 점, 본건에서 본안 판단을 하지 않는다면 유사한 위법 처분이 반복될 것”이라는 취지에서 ‘수색’처분을 취소하였다. 형사소송법 제417조 준항고는 행정부의 소속된 검사 또는 사법경찰관의 처분을 다투는 것으로 일종의 항고소송이다. 수사기관이 준항고인으로부터 압수수색한 결과물이 없는 상황에서 집행이 종료된 상태에서 사실상 회복이 불가능한 행위인 ‘수색’처분만 취소가 가능한지, 처분이 종료된 상태에서 ‘법률상 이익’이 있는지 여부를 검토해보아야 한다. 형사소송법은 제215조 이하에서 압수와 수색을 구별하지 않고 ‘압수, 수색 또는 검증’이라는 용어를 사용하고 있는데, 유독 제417조에서는 ‘압수’라고만 규정하고 있는바, 이는 압수에 수반되는 절차로서 수색에 관한 처분이라면 해당 수색처분은 압수처분과 함께 준항고의 대상이 되지만, 압수한 물건 자체가 없다면 압수처분과는 별개로 수색처분만 취소하는 것은 상정할 수 없다거나, 준항고로 취소할 대상 자체가 없다고 보는 것이 입법자의 의사라고 할 것이다. 즉 대상결정으로 인하여 일반적으로 ‘수색’처분을 취소할 수 있다고 볼 수는 없을 것이다. The decision of the Supreme Court on November 8, 2022, Case No. 2021Mo3291, addressed issues related to quasi-appeal (준항고) concerning legal interests, the scope of participation rights guarantee, the legality of the seizure target, and the scope of cancellation. Specifically, the subject decision stated that even in cases where the subject of the quasi-appeal had "searched" but not "seized" items in the National Assembly office, the search disposition had already ended. ㅆhere was no existing "outcome," it is necessary to appropriately control the illegal search disposition of the investigative agency. If a violation of the basic rights of the people occurrs due to an illegal search, it is necessary to restore it. The decision emphasized that there is a need to cancel the illegal execution of a search warrant even if there is no subsequent seizure following an illegal search. The quasi-appellant, in this case, was not seeking the annulment of the results of the search warrant execution but demanded the cancellation of the illegal execution of the search warrant. It was noted that if the illegality of the execution is confirmed, the quasi-appellant could avoid punishment for the charge of obstruction of official duties related to the execution. Article 417 of the Criminal Procedure Act pertains to quasi-appeal, which is a type of administrative appeal against the decisions of prosecutors or judicial police officers within the administrative branch. In situations where the investigative agency has not seized any results from the quasi-appellant and the execution has already concluded, the question arises whether only the "search" disposition, which is an act practically irrecoverable in such circumstances, can be canceled. It is necessary to examine whether there is a "legal interest" after the disposition has ended. The Criminal Procedure Act, up to Article 215, uses the term "seizure, search, or verification" without distinguishing between seizure and search. However, Article 417 specifically regulates "seizure" and does not mention "search." Therefore, it can be argued that if the disposition related to the search is considered, it becomes part of the quasi-appeal, along with the seizure disposition. If there is no property seized, it may not be possible to cancel only the search disposition separately, or it may be considered that there is no subject to cancel as a quasi-appeal. In other words, it cannot be considered that the 'search' disposition can be canceled in general due to the decision of the Supreme Court on November 8, 2022, Case No. 2021Mo3291.

Laxatives 제대로 알기 ; 변비 약물 치료의 지침 - 어떤 약제를, 언제 사용해야 하는가?

신정은 ( Jeong Eun Shin ),홍경섭 ( Kyoung Sup Hong ),정기욱 ( Kee Wook Jung ),이태희 ( Tae Hee Lee ),이봉은 ( Bong Eun Lee ),박선영 ( Seon Young Park ),홍성노 ( Sung Noh Hong ),김성은 ( Seong Eun Kim ),박경식 ( Kyung Sik Park ) 대한내과학회 2015 대한내과학회지 Vol.88 No.1

To manage chronic constipation, dietary and lifestyle modifications should be tried before pharmacological intervention. Although there is no standardized treatment guideline for medical practice, the key considerations in the choice of laxative includethe treatment duration, dosing schedule, type of agent, effects and side effects of the agent, and cost. The first-line treatment is abulking or osmotic laxative. If the patient is still symptomatic, the physician can add or switch to other laxatives. Next, prucalopride,a highly selective 5-hydroxytryptamine 4 (5-HT4) receptor agonist, could be considered. If the constipation is refractory tocombination therapy with conventional laxatives and prucalopride, patients should be referred for further evaluation, includingphysiological testing.

Laxatives 제대로 알기 ; 차세대 완하제

홍성노 ( Sung Noh Hong ),신정은 ( Jeong Eun Shin ),홍경섭 ( Kyoung Sup Hong ),정기욱 ( Kee Wook Jung ),이태희 ( Tae Hee Lee ),이봉은 ( Bong Eun Lee ),박선영 ( Sun Young Park ),김성은 ( Seong Eun Kim ),박경식 ( Kyung Sik Park ) 대한내과학회 2015 대한내과학회지 Vol.88 No.1

A significant proportion of chronic constipation patients are dissatisfied with their treatment. Recently, a number of new medicationshave been introduced for patients refractory to conventional laxatives, such as prucalopride, lubiprostone, linaclotide, andelobixibat. Prucalopride is a novel gastrointestinal prokinetic agent that acts as a 5-hydroxytryptamine type 4 (5-HT4) agonist. Compared with older nonselective 5-HT4 agonists, the higher selectivity of prucalopride for 5-HT4 receptors can reduce the risk ofsignificant adverse cardiovascular events. Prucalopride improves stool frequency and consistency, and reduces the need for rescuemedications. Lubiprostone, a chloride channel activator, increases the secretion of intestinal fluid, improves the stool frequency andconsistency, and reduces straining. Linaclotide, a guanylate cyclase-C agonist, is effective in treating patients with chronic constipationand its effect on visceral sensitivity, as shown mainly in animal studies, provides an attractive pharmaceutical option for patients with irritable bowel syndrome with constipation. Elobixibat is an ileal sodium-dependent bile acid transporter inhibitor thatblocks the enterohepatic circulation of bile acids, increasing the bile acid concentration in the intestine, which accelerates colonictransit and softens the stool. A phase III trial of the treatment of chronic constipation and irritable bowel syndrome with constipationis underway. The clinical application of new-generation laxatives will contribute to the management of chronic constipation refractoryto conventional laxatives.

만성 기능성 변비의 진단과 치료 임상 진료지침 개정안 2015

신정은 ( Jeong Eun Shin ),정혜경 ( Hye-kyung Jung ),이태희 ( Tae Hee Lee ),조윤주 ( Yunju Jo ),이혁 ( Hyuk Lee ),송경호 ( Kyung Ho Song ),홍성노 ( Sung Noh Hong ),임현철 ( Hyun Chul Lim ),이순진 ( Soon Jin Lee ),정순섭 ( Soon Sup 대한내과학회 2016 대한내과학회지 Vol.91 No.2

The Korean Society of Neurogastroenterology and Motility first published guidelines for chronic constipation in 2005 and was updated in 2011. Although the guidelines were updated using evidence-based process, they lacked multidisciplinary participation and did not include a diagnostic approach for chronic constipation. This study includes guidelines for diagnosis and treatment of chronic constipation to realistically fit the situation in Korea and to be applicable to clinical practice. The guideline development was based upon the adaptation method because research evidence was limited in Korea, and an organized multidisciplinary group carried out systematical literature review and series of evidence-based evaluations. Six guidelines were selected using the Appraisal of Guidelines for Research & Evaluation II process. A total 37 recommendations were adopted, including 4 concerning the definition and risk factors of chronic constipation, 8 regarding diagnoses, and 25 regarding treatments. The guidelines are intended to help primary physicians and general health professionals in clinical practice in Korea, to provide the principles of medical treatment to medical students, residents, and other healthcare professionals, and to help patients for choosing medical services based on the information. These guidelines will be updated and revised periodically to reflect new diagnostic and therapeutic methods. (Korean J Med 2016;91:114-130)

Evaluation of Biological Activities of the Short-term Fermented Soybean Extract

이지수,노신정,김영완,이기원,이현규 한국식품과학회 2013 Food Science and Biotechnology Vol.22 No.4

The short-term fermented soybean extract (FSE)using soybean and wheat was prepared at a high temperature to accelerate proteolytic hydrolysis. The chemical composition and in vitro biological activities of FSE were investigated. FSE contained mainly the low molecular weight peptides of less than 3 kDa and was dominantly composed of glutamic acid, leucine, proline, and alanine. The EC50 value of DPPH radical scavenging activity of FSE was 1.63 mg/mL, and the inhibition of linoleic acid autoxidation by FSE was equivalent to 77% of the antioxidant activity of α-tocopherol. FSE showed a concentration-dependent antimicrobial activity against Bacillus subtilis and Escherichia coli. In addition,FSE at 1 mg/mL showed the strong inhibition effects on growth of MCF7 and HT1080 with 58 and 64%, respectively. In conclusion, FSE prepared by rapid fermentation may be useful as a functional food ingredient with antioxidant,antimicrobial, and antitumor activities.

Physicochemical properties and freeze-thaw stability of rice flour blends among rice cultivars with different amylose contents

홍은미,노신정,김의황,김용노 한국식품과학회 2021 Food Science and Biotechnology Vol.30 No.10

The effectiveness of the rice flour blends (RFB)for improving the processing suitability of Dodamssal riceflour (DD), a functional rice variety with a relatively highamylose and resistance starch content, was investigated. Physicochemical properties and freeze–thaw stability ofRFB composed of DD and four rice flour (RF) sampleswith different amylose contents were measured at differentDD ratios. DD, which has low swelling power and lowpasting viscosity properties, has improved some quality interms of physicochemical properties by blending with otherRF. Especially, non-additive behavior was observed in theblend with Geonyang No.2 RF (GY), a medium waxyvariety, due to water competition caused by the differencein pasting temperature. The syneresis of DD was reducedby blending with 75% Hanareum No. 4 RF, with a gradualreduction effect observed following a repeated freeze–thawcycle. GY significantly improved the low freeze–thawstability of DD with only a 25% blend.

아밀로스 함량이 다른 국내산 가공용 쌀가루 블렌드의 비가산적 효과

홍은미,노신정,김용노 한국산업식품공학회 2020 산업 식품공학 Vol.24 No.4

The physicochemical properties of Korean rice flour cultivars (Saemimyeon [SM], Hanareum No. 4 [HA], and Milyang No. 328 [MY]) with different amylose contents were analyzed and the effects of rice flour blending on their physicochemical property changes were investigated in this study. The swelling power of three different cultivars was similar at 60oC, but MY showed significantly enhanced swelling power at 80oC compared to SM and HA. In the pasting profile, MY showed significantly lower final and break-down viscosities than SM and HA due to its weak granular rigidity. In the case of the 1:1 blending of SM-MY and HA-MY, the measured values of swelling power and solubility were greatly decreased at 80oC, and the setback and final viscosity were significantly increased compared to their predicted arithmetic average values, showing the non-additive effects of blending. For the dynamic viscoelastic properties, SM-MY and HA-MY showed significantly decreased G’ and increased k’ and tanδ, compared to their predicted average values. In conclusion, the selected rice flour blends had non-additive effects on swelling power, solubility, pasting, and dynamic viscoelastic properties. These results showed the feasibility of the rice flour blending to diversify the physicochemical properties of rice flour for better processing suitability.

麻藥 및 向精神性 醫藥品의 標準品 製造에 關한 硏究(Ⅱ) : 韓國産大麻의 性分硏究 및 標準品 製造에 關한 硏究 Studies on the components and preparation of reference standard from Korean Cannabis

元道喜,姜信晶,崔燉雄,李秀庭,朴相勇,韓貞愛,盧榮洙 국립보건연구원 1992 국립보건원보 Vol.29 No.2

Development of Multilayer Perceptron Model for the Prediction of Alcohol Concentration of Makgeolli

김준용,노신정,조윤성,조은선 한국농업기계학회 2018 바이오시스템공학 Vol.43 No.3

Purpose: Makgeolli is a traditional alcoholic beverage made from rice with a fermentation starter called “nuruk.” The concentration of alcohol in makgeolli depends on the temperature of the fermentation tank. It is important to monitor the alcohol concentration to manage the makgeolli production process. Methods: Data were collected from 84 makgeolli fermentation tanks over a year period. Independent variables included the temperatures of the tanks and the room where the tanks were located, as well as the quantity, acidity, and water concentration of the source. Software for the multilayer perceptron model (MLP) was written in Python using the Scikit-learn library. Results: Many models were created for which the optimization converged within 100 iterations, and their coefficients of determination R2 were considerably high. The coefficient of determination R2 of the best model with the training set and the test set were 0.94 and 0.93, respectively. The fact that the difference between them was very small indicated that the model was not overfitted. The maximum and minimum error was approximately 2% and the total MSE was 0.078%. Conclusions: The MLP model could help predict the alcohol concentration and to control the production process of makgeolli. In future research, the optimization of the production process will be studied based on the model.