@article{ART003183933},
author={YeongHun Jeong},
title={Guarantee of the right to participate in the search and seizure of digital evidence},
journal={Legal Theory & Practice Review},
issn={2288-1840},
year={2025},
volume={13},
number={1},
pages={111-141}
TY - JOUR
AU - YeongHun Jeong
TI - Guarantee of the right to participate in the search and seizure of digital evidence
JO - Legal Theory & Practice Review
PY - 2025
VL - 13
IS - 1
PB - The Korea Society for Legal Theory and Practice Inc.
SP - 111
EP - 141
SN - 2288-1840
AB - With the spread of smartphones and tablet terminals, it is becoming a daily routine to create, use, and store contracts, bills, and photos as they are. In the past, the original was primarily written using paper, but now it is not uncommon for them to be stored only in cloud storage without being printed on paper and end their role. Therefore, digital information has a very important meaning in modern society.
However, under the current Criminal Procedure Act, the regulations on seizure and search are highly likely to be based on fluids in the past. Moreover, regulations related to digital evidence also stipulate that the subject of seizure and search is for printed materials or information storage media itself, so it is not clear whether electronic information itself is subject. Considering the current importance or meaning of electronic information, it is necessary to amend the current criminal procedure law, which is defined based on fluids as objects of seizure and search.
Since there are characteristics that only fluid objects and digital evidence have, it is treated as an object of seizure or search in an investigation, but it must be treated differently from evidence, which is a general fluid. Therefore, it is most important to operate due process related to evidence collection.
Under the Criminal Procedure Act, the right to participate in seizure and search is the right of persons involved in the case, such as suspects, to express and carry out opinions on illegal acts of investigative agencies beyond cooperating in the execution of warrants, or to record them and seek the judgment of the judiciary later.
Invisible digital evidence has become a fatal risk to data subjects and a very attractive means to investigative agencies. Therefore, a face-to-face hearing procedure by the judiciary is required before issuing a seizure and search warrant because it is necessary to be careful not to reflect only attractive factors in the issuance of the warrant.
In the process of searching and collecting a vast amount of electronic information that is difficult for an investigative agency to grasp, it is necessary to guarantee the right to state opinions on the execution of illegal warrants, such as collecting information irrelevant to the charges. In order to guarantee the right to state actual opinions, the warrant must have specific information on the criminal charges, and prior notice of the contents related to the execution of the warrant should be made.
Depending on the characteristics of digital evidence, it goes through several stages of evidence search and collection. Guaranteeing the right to participate only at some stage is meaningless in the case of digital evidence. Therefore, it is necessary to clearly guarantee the right to participate in the entire process of seizure and search.
It is the public defender system that must be discussed together to substantially guarantee the right of suspects to participate in the evidence collection stage. This is because it can be reduced to a benefit that only those who have a lawyer's appointment can exercise in the evidence collection stage, which is the investigation stage. Therefore, the expansion of the public defender system should be supported.
KW - Digital Evidence;Search and Seizure;Right to Participate;Collection of Evidence.
DO -
UR -
ER -
YeongHun Jeong. (2025). Guarantee of the right to participate in the search and seizure of digital evidence. Legal Theory & Practice Review, 13(1), 111-141.
YeongHun Jeong. 2025, "Guarantee of the right to participate in the search and seizure of digital evidence", Legal Theory & Practice Review, vol.13, no.1 pp.111-141.
YeongHun Jeong "Guarantee of the right to participate in the search and seizure of digital evidence" Legal Theory & Practice Review 13.1 pp.111-141 (2025) : 111.
YeongHun Jeong. Guarantee of the right to participate in the search and seizure of digital evidence. 2025; 13(1), 111-141.
YeongHun Jeong. "Guarantee of the right to participate in the search and seizure of digital evidence" Legal Theory & Practice Review 13, no.1 (2025) : 111-141.
YeongHun Jeong. Guarantee of the right to participate in the search and seizure of digital evidence. Legal Theory & Practice Review, 13(1), 111-141.
YeongHun Jeong. Guarantee of the right to participate in the search and seizure of digital evidence. Legal Theory & Practice Review. 2025; 13(1) 111-141.
YeongHun Jeong. Guarantee of the right to participate in the search and seizure of digital evidence. 2025; 13(1), 111-141.
YeongHun Jeong. "Guarantee of the right to participate in the search and seizure of digital evidence" Legal Theory & Practice Review 13, no.1 (2025) : 111-141.
