원격지 서버 압수․수색의 적법성

• 영문명: The Scope and Limitations of Remote Searches and Seizure
• 발행기관: 한국형사판례연구회
• 저자명: 조성훈
• 간행물 정보: 『형사판례연구』제31권, 395~436쪽, 전체 42쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2023.06.30

영문 초록

When it is confirmed that relevant information is stored in other computers connected to the search target computer through a network and access through the search target computer is possible, and when relevant information is seized by accessing the other computer through the search target computer, it is called “remote searches and seizure.” According to Article 114(1) of the Criminal Procedure Act, the place of searches and seizures must be specified in the warrant, and the execution of the warrant is limited to the specified place. Therefore, there may be a question as to whether it is legally permissible to search and seize information stored on a specific medium connected to a network, rather than the storage medium itself. However, due to the nature of electronic information, which is scattered and stored on various media that are difficult to identify in advance, and the development of network technology, there is a prevailing view that recognizes the legality of seizing and searching within a certain range, even if the exact storage location cannot be specified. With the development of technology, the need for remote searches and seizures within a certain range can be acknowledged. The problem is to what extent this can be recognized under what conditions. Until now, it is thought that the practical application in Korea has been somewhat loose in the absence of clear laws and precedents. This ruling has an important meaning in that it provides a starting point for the specific legal requirements of remote searches and seizures. Remote searches and seizures should be limited to cases where the searched computer and the storage media connected remotely, such as input devices that function as part of the searched computer and storage devices that function as storage devices, have “functional unity.” If such limitations are not imposed, there is a risk that the scope of remote searches and seizures will be excessively broad and the practical significance of pre-control by judges will be lost. Furthermore, it is necessary to demonstrate the “necessity” of remote searches and seizures , and to specify the “range of information to be seized” in the warrant as specifically as possible to prevent the abuse of remote searches and seizures. In order to clarify and fulfill the legal requirements for remote searches and seizures, it is necessary to directly regulate the essential requirements mentioned above in the Criminal Procedure Act.

목차

◇ 대법원 2022. 6. 30. 선고 2022도1452 판결

[연구]

Ⅰ. 서버에 보관 중인 전자정보의 압수 ․ 수색

Ⅱ. 원격 압수 ․ 수색: 비교법적 검토

Ⅲ. 원격지 압수 ․ 수색의 적법성

Ⅳ. 관련 문제 - 결론에 갈음하여

참고문헌

키워드

전자정보 디지털증거 압수 ․ 수색 원격 전자정보 수집 위법수집증거배제법칙 Electronically Stored Information Digital Evidence Searches & Seizure Remote Access to Search Electronic Storage Media and Seize Electronically Stored Information Located Outside of Premise Exclusion of Illegally Obtained Evidence