과학기술 발달에 따른 형사절차 통제를 위한 새로운 시도와 우려

• 영문명: New attempts and concerns about controlling criminal procedures due to the development of science and technology: Focusing on discussions on introducing arbitrary judge-face-to-face hearing methods in relation to the issuance of search and seizure warrants
• 발행기관: 충북대학교 법학연구소
• 저자명: 박재평(Jae-Pyoung Park)
• 간행물 정보: 『과학기술과 법』제15권 제1호, 41~74쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2024.06.30

국문 초록

In recent criminal cases, information storage media such as computers and smartphones, as well as servers connected to them through networks, are frequently searched and seized. In particular, unlike in the past, among various information storage media, smartphones are essential in our daily lives, and the information contained in smartphones is so vast that it includes the entire lives of smartphone users, so they are usually confiscated when investigative agencies conduct seizures and searches. Seizure and search of the smartphone of the search subject is mandatory. In this situation, the introduction of a prior interrogation system in relation to the issuance of seizure and search warrants by judges is sometimes advocated as a way to control seizure and search by investigative agencies. In other words, it is necessary to introduce prior examination of seizure and search warrants based on the warrant principle that plays the role of preventive control, fairness, and strengthening the self-censorship function of investigative agencies. On the other hand, it is pointed out that it runs counter to the secrecy of the investigation, causes delays in the investigation, violates the principle of separation of powers by the judiciary's investigative authority, and requires a basis in law rather than the Supreme Court rules, and pre-interrogation of seizure and search warrants. Some also oppose the introduction of the system. Recently, as the Chief Justice of the Supreme Court revealed his position on the introduction of the above system, discussions on the pros and cons are rising to the surface again. Seizure and search warrants are a traditional method of compulsory investigation, but are mainly used in the initial stage of a case, and considering that they are the main means of obtaining electronic information stored in smartphones, which have become the main object of seizure and search with the changes of the times due to the development of science and technology, seizure and search warrants are a traditional method of compulsory investigation. It appears that the search warrant pre-interrogation system needs to be reviewed. The principles of substantive truth, proper procedure, and speedy trial, which are the ideology and objective principles of criminal litigation, are in a tension relationship, but harmony must be pursued in that they all function as the objective principles of criminal litigation. The basic purpose of criminal litigation is to determine the truth of the case, clarify all criminal charges, establish the presence or absence of a crime, and secure the substantive legitimacy of the judgment for the proper application of criminal law. The approach to whether to introduce an arbitrary judicial pre-examination system related to search and seizure warrants should not deviate from this general principle. And since such a criminal system inevitably affects the basic rights of not only the suspect or defendant involved in the case, but also all citizens, such as witnesses and victims, constitutional basics such as the nature of seizure and search, the principle of separation of powers, and matters reserved to the National Assembly, etc. When considering the principles together, more caution should be taken in introducing this system.

목차

Ⅰ. 서론

Ⅱ. 압수･수색영장 발부 관련 임의적 법관 대면심리수단의 주요내용

Ⅲ. 압수･수색영장 발부 관련 임의적 법관 대면심리수단에 대한 논의와 외국의 입법례

Ⅳ. 헌법상･형사법상 이론적･실무적 주요 쟁점에 대한 검토

Ⅴ. 결론

키워드

압수·수색영장 대면심리 심문제도 의회유보 권력분립 밀행성 seizure and search warrants face-to-face hearings interrogation system congressional reservations separation of powers secrecy