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A study on the introduction of the electronic information warrant system

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2023, 11(1), pp.495-525
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : January 31, 2023
  • Accepted : March 1, 2023
  • Published : February 28, 2023

Lee, In Gon 1

1호서대학교

Accredited

ABSTRACT

In the case of search and seizure of electronic (digital) information, there is a vast amount of electronic information in the electronic information storage medium, so it may contain information related to the alleged fact as well as irrelevant information. Due to its special characteristics, such as physical indivisibility, even parts unrelated to the alleged facts can be subject to search and seizure, and there is a high risk of infringing on personal privacy or corporate trade secrets. In order to minimize or end such concerns, the seizure and search of electronic information should also target only the part related to the alleged fact stated in the warrant. Of course, as a premise, it is natural in principle to prohibit general warrants that everything from the stage of issuance of a warrant to the object, place, and (in some cases) method of seizure and search should be specified in detail as possible. The connection between the search and seizure of electronic information is determined by the objective (relevance of the electronic information itself), subjective (personal relevance, such as the person managing the electronic information or the person who enjoys basic rights), and temporally (a certain time range). temporal relevance, such as tracking within). Since the seizure and search of electronic information is conducted only for the part related to the alleged fact described in the warrant, specific specific measures are needed to ensure legitimacy. First, the relevant information must be selected through the search of files related to the alleged facts. As a method, you can think of a normal search method such as a keyword search for files in the information storage medium. With the development of storage medium technology, a password is set so that it cannot be searched by normal search methods, and a special type of picture is not a document file. In the case of filing, the execution of non-retrieval methods should also be allowed to exist. Whether or not the non-search enforcement method is recognized as an exception will have to be judged individually by the investigative agency depending on the case. Recently, in order to selectively search and seize electronic information related to criminal charges, an argument has been made to accept US precedent theories related to search and seizure warrant enforcement such as the 'Tamura-Carey approach' or 'Kosinskian', but the legal system is different. Our investigative authorities have a difficult aspect to introduce quickly. On the other hand, with respect to the copying or imaging of the entire hard disk, there may be a point of view that it should be completely denied in terms of relevance due to the broadness or comprehensiveness of the subject. You need to be careful. The request for prohibition of a general warrant to guarantee the human rights of the person punished and the request for the appropriate exercise of the state's right to punish for the discovery of substantive truth (specificity and effective response to computer crimes that are difficult to determine whether or not they are related to charges in physical information media) will be harmoniously reflected. There is a need. Going one step further, this study seeks to establish the basis of the national criminal justice system through the introduction of the electronic information warrant system, which has been actively discussed in the academic world and the working world (police-prosecution) for the effective realization of the two pillars of the national criminal justice system. The existing conflict between the prosecution's exclusive right to request a warrant and the independence of the police's right to request a warrant following the adjustment of the prosecutor's and police's investigative powers is discussed separately in this study). Although e-mail or fax is already used when requesting a warrant in investigation work, it has usually taken the form of a warrant request by the investigative agency, issuance by the court, and presentation of the warrant to the disposition party in writing. These investigation procedures are not face-to-face through the Internet, etc. Recently, in the reality of a rapid increase in criminal cases (crimes) against an unspecified number of people, such as Internet product fraud and voice phishing, delay in investigation carries the risk of destroying evidence in an emergency situation. If the investigative agency uses it illegally, it becomes an opportunity to overuse the exception of the warrant principle. Accordingly, the purpose of introducing the electronic warrant system under the Criminal Procedure Act is to simplify and promptly respond to urgent matters or important cases such as national security due to the development of information and communication technology and various media by promptly requesting and issuing warrants. It is meaningful to solve at once through the introduction of the electronic warrant system that the fundamental rights of the people are also more thickly guaranteed. The connection between the search and seizure of electronic information is determined by the objective (relevance of the electronic information itself), subjective (personal relevance, such as the person managing the electronic information or the person who enjoys basic rights), and temporally (a certain time range). temporal relevance, such as tracking within). Since the seizure and search of electronic information is conducted only for the part related to the alleged fact described in the warrant, specific specific measures are needed to ensure legitimacy. First, the relevant information must be selected through the search of files related to the alleged facts. As a method, you can think of a normal search method such as a keyword search for files in the information storage medium. With the development of storage medium technology, a password is set so that it cannot be searched by normal search methods, and a special type of picture is not a document file. In the case of filing, the execution of non-retrieval methods should also be allowed to exist. Whether or not the non-search enforcement method is recognized as an exception will have to be judged individually by the investigative agency depending on the case. Recently, in order to selectively search and seize electronic information related to criminal charges, an argument has been made to accept US precedent theories related to search and seizure warrant enforcement such as the 'Tamura-Carey approach' or 'Kosinskian', but the legal system is different. Our investigative authorities have a difficult aspect to introduce quickly. On the other hand, with respect to the copying or imaging of the entire hard disk, there may be a point of view that it should be completely denied in terms of relevance due to the broadness or comprehensiveness of the subject. You need to be careful. The request for prohibition of a general warrant to guarantee the human rights of the person punished and the request for the appropriate exercise of the state's right to punish for the discovery of substantive truth (specificity and effective response to computer crimes that are difficult to determine whether or not they are related to charges in physical information media) will be harmoniously reflected. There is a need. Going one step further, this study seeks to establish the basis of the national criminal justice system through the introduction of the electronic information warrant system, which has been actively discussed in the academic world and the working world (police-prosecution) for the effective realization of the two pillars of the national criminal justice system. The existing conflict between the prosecution's exclusive right to request a warrant and the independence of the police's right to request a warrant following the adjustment of the prosecutor's and police's investigative powers is discussed separately in this study). Although e-mail or fax is already used when requesting a warrant in investigation work, it has usually taken the form of a warrant request by the investigative agency, issuance by the court, and presentation of the warrant to the disposition party in writing. These investigation procedures are not face-to-face through the Internet, etc. Recently, in the reality of a rapid increase in criminal cases (crimes) against an unspecified number of people, such as Internet product fraud and voice phishing, delay in investigation carries the risk of destroying evidence in an emergency situation. If the investigative agency uses it illegally, it becomes an opportunity to overuse the exception of the warrant principle. Accordingly, the purpose of introducing the electronic warrant system under the Criminal Procedure Act is to simplify and promptly respond to urgent matters or important cases such as national security due to the development of information and communication technology and various media by promptly requesting and issuing warrants. It is meaningful to solve at once through the introduction of the electronic warrant system that the fundamental rights of the people are also more thickly guaranteed.

Citation status

* References for papers published after 2022 are currently being built.

This paper was written with support from the National Research Foundation of Korea.