The emergence of new technologies often gives rise to new forms of crime. Offenders who remain anonymous in identity and location commit cybercrimes through computers and information technologies without temporal or spatial constraints. Such character...
The emergence of new technologies often gives rise to new forms of crime. Offenders who remain anonymous in identity and location commit cybercrimes through computers and information technologies without temporal or spatial constraints. Such characteristics of cybercrime complicate every stage of criminal investigation—from identifying suspects to collecting and securing admissible evidence. Recognizing these challenges, the international community has emphasized the need for judicial cooperation based on effective treaties. The Convention on Cybercrime (Budapest Convention) entered into force in 2004, and the Draft United Nations Convention against Cybercrime was finalized in 2024. While Korea contributed actively to the drafting of the UN Convention, achieving consensus on contested provisions, it has not yet acceded to the Budapest Convention, which is currently in force in 78 countries. This study examines the necessity and legal implications of treaty accession and explores how implementing legislation should be designed to enable Korea’s accession to both the Budapest Convention and the UN Convention against Cybercrime. To this end, it first reviews the concept and features of cybercrime, principles of jurisdiction under international law, the expansion of jurisdiction in competition law, and debates on jurisdiction in cyberspace. It then analyzes the domestic legal status of treaties, noting that under the Korean Constitution and case law, treaties generally have the force of statute and evidence collected pursuant to them may be admitted as lawfully obtained. Both conventions require states party to legislate specific measures for accession. Among them, the introduction of a “data preservation” system is currently under discussion in Korea. Data preservation prevents the alteration, deterioration or deletion of digital evidence
prior to seizure. It also requires the cooperation of service providers. Although several legislative attempts have been made, the first bill explicitly aimed at treaty accession was introduced only in the 22nd National Assembly. This study evaluates the bill against treaty requirements, foreign legislative practices, and prior proposals, and suggests refinements: granting authority to both prosecutors and police, explicitly requiring “necessity” and “urgency,” broadening the scope of obligated entities, clarifying the categories of preserved data, and ensuring judicial supervision. It further proposes technical plan of implementation based on the suggested bill, such as the use of Copy-On-Write snapshot and encryption method that prevents investigation organization from accessing preserved data until the approval of court. The study ultimately seeks to propose legislation that fulfills the objectives of data preservation while satisfying treaty requirements. By doing so, it aims to contribute to the completion of implementing
legislation and the ongoing refinement of Korea’s legal framework for combating cybercrime.