디지털 증거 압수·수색영장의 집행에 있어서의 협력의무 = Duty to Assist Digital Search Warrant Execution

다국어 초록 (Multilingual Abstract)

A search warrant allows police to perform acts that would otherwise be trespasses. It imposes no legal duty on people to assist the police in their search. The general rule is that while such other person may not hinder the police such a person is under no legal obligation to help the police. That was the case in South Korea too.
In 2011, however, Korea Criminal Procedure was amended to include the duty to produce digital evidence. Nonetheless, the law enforcement demand to amend additionally the law to expand the scope of the duty to assist digital search warrant execution resulting in including duty to preserve digital evidence and duty to assist warrant execution. Some scholars and judges have expressed different opinion over the additional revision.
While we should pay attention to human rights and due process of law, it is also wise to notice the traditional rule is insufficiently sophisticated to cope fairly with some circumstances in which legitimate criminal investigation processes encounter contemporary information technology. We should consider the need to ensure a proper balance between the interests of law enforcement and respect for fundamental human rights. It is true that many developed countries including Council of Europe Convention on Cybercrime(CCC) are introducing this kind of duties regarding the digital evidence. For example, CCC Art. 16(1) prescribes as follows: "Each Party shall adopt such legislative and other measures as may be necessary to enable its competent authorities to order or similarly obtain the expeditious preservation of specified computer data, including traffic data, that has been stored by means of a computer system, in particular where there are grounds to believe that the computer data is particularly vulnerable to loss or modification".
I have compared a few legislative examples of other countries and reached the conclusion that it is inevitable to introduce the preservation order into Korea Criminal procedure at least with respect of digital evidence because the preservation order is just a temporary order for exigent situation and less intrusive than production order which is already introduced.

목차 (Table of Contents)

• Ⅰ. 서 론
• Ⅱ. 디지털 증거에 있어서 협력의무의 의의
• Ⅲ. 개정 이전 형사소송법에서의 제출명령
• Ⅳ. 개정된 형사소송법에서의 제출명령
• Ⅴ. 새로운 입법 동향
• Ⅵ. 결 론
• [참고문헌]
• [Abstract]