전자정보의 증거능력을 둘러싼 쟁점별 검토와 해석론

• 영문명: The review and interpretation of the issues in the evidence admissibility of electronic information
• 발행기관: 중앙대학교 법학연구원
• 저자명: 조광훈(Cho, Kwang-hun)
• 간행물 정보: 『법학논문집』法學論文集 第39輯 第3號, 183~237쪽, 전체 55쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2015.12.18

영문 초록

The originality, truthfulness, integrity and reliability, which are the characteristics of electronic information, have absolute impact on the evidence admissibility existence of electronic information. In other words, the characteristics of electronic information work as the previous conditions in the review of evidence admissibility existence of electronic information. Regarding the extent of substantiation, it can be said that the evidence admissibility has been substantiated, if the participation right has been warranted, a confirmation letter at the time of the packing, opening or closing the seized item has been issued, imaging after a write-protection device has been done, a globally acknowledged program has been used, the reliability of the hash value given after the seizure has been maintained until the verification, the mechanical accuracy of the computer, the reliability of the program and the technical capability of the operator have been met from the time of the search and seizure by the investigating institution until the submission of the electronic information as an evidence. However, these are just a guideline suggested by the judicial precedents; while the extent of substantiation should be collectively judged in each concrete case. Electronic information is a statement document and it is also is a non-statement document. Electronic information is also original evidence and it is also is hearsay evidence. It is not easy to meet the equirement of autograph or sealing because of the electronic information characteristics; however, in consideration of the electronic information characteristics, the formal authenticity requirement should be seen as having been met if there is no difficulty in the replacement of autograph or sealing requirement required in the statement document by an objective method. It should be seen that the electronic information to be used as evidence would not be applied of the Article 311 and the Article 312; while the Article 313 should be applied.The current law has the gap that the evidence admissibility of the output from electronic information would be denied if the establishment truthfulness would not be acknowledged by the stat ement of the author. Accordingly, it is urgently required that the Article313 should be revised to fill this gap. Until the provision would be revised, it should not be seen that the truthfulness establishment would be acknowledged by the ‘statement only’ regarding the truthfulness establishment of the author or the testifier in the Article 313-1; while it should be allowed to achieve the substantiation by way of an objective method other than a statement. It would be reasonable to interpret the meaning of the “against the statement” in the condition of the Article 313 as “against the fact that the truthfulness establishment has been denied” and to interpret the meaning of the “the document carrying the statement of the defendant” as “the statement document carrying the statement of the defendant”. However, it should be seen that the Article 314 would not be applied. Meanwhile, the application of the Article 315 should be accepted if the document is a public certifying document prepared as electronic information by information storing medium or if the document is circumstantially acknowledged of its credit as having been prepared as a part of routine work.

목차

Ⅰ. 서 론

Ⅱ. 전자정보의 증거능력 유⋅무를 검토하기 위한 선결요건과 입증정도

1. 전자정보의 원본성 유지 문제

2. 전자정보의 진정성(무결성⋅동일성)의 문제

3. 동일성⋅무결성⋅신뢰성의 입증정도

Ⅲ. 각 쟁점별 구체적 검토와 해석론

1. 전자정보가 진술서류인가? 비진술서류인가?

2. 전자정보가 원본증거인가? 전문증거인가?

3. 전자정보에 ‘자필 서명 또는 날인’이 요구되는가?

Ⅳ. 전자정보의 전문법칙 예외의 적용 여부에 대한 구체적 검토와 입법론

1. 전자정보에 대한 전문법칙의 적용문제

2. 제311조 내지 제312조의 적용문제

3. 제313조의 적용문제

4. 제314조의 적용여부에 관한 검토

5. 제315조의 적용여부에 관한 검토

6. 형사소송법 제313조의 입법론 소개와 입법안 제시

Ⅴ. 결 론

키워드

전자정보 정보저장매체 압수수색 전자증거 디지털증거 제313조 전문법칙 진정성립 증거능력 electronic information information storing medium electronic evidence digital evidence Article 313 hearsay principle truthfulness establishment evidence admissibility