디지털 증거의 수집과 증거능력에 관한 연구

Abstract

With the advant of "digital Information Age", most of the information is digitally being formed. Various kinds of documents including video are digitally being stored and other existing information is renewedly being stored. However, this digitalization of information has the positive side of the sharing of information and on the other hand the negative side of the information crimes. And the application of digital evidence in a criminal prosecution and trial has some unique characteristics which are difficult to control in the existing criminal procedure law and proceedings, because the criminal procedure code do not fully reflect the characteristics of digital evidence. As a kind of proof during the prosecution's investigation, digital evidence should conform to the criminal procedure law in the execution of search and seizure. It needs to specify the contents about compulsory execution including a spot and target in a search and seizure warrant. The existing criminal procedure law limits the objectives of the search and seizure process to material things, and the revised criminal procedure law prescribes that the objectives of seizure are ‘computer disc and other information applications and the like', but it is desirable to prescribe the objectives as ‘digital data’. And in the computer crime there are often no real benefits in searching and seizing a house and a computer of the suspect with a warrant, owing to storing information in a third-party server such as webhard. For this reason, it is necessary to revise related laws in order to include the digital evidence in itself as the objective of the search and seizure process. However in this case, it should not be wholly allowed to search and seize an immaterial evidence. Digital evidence which is collected and presented to a court must integrity and identity with original evidence. Even if these requirements are satisfied, hearsay evidence in the form of digital evidence shall be subject to the hearsay rule. The electronic documents in the form of printouts can be analogized to documentary evidence in evidence law, because of the similarity in character and function. Therefore if the statement evidence containing human thoughts, feelings, and expressions, is included in the electronic documents, hearsay rule can be applied to this case. Moreover the electronic data containing statement shall be subject to the hearsay rule, even if it is not included in documentary evidence. For an exception to the hearsay rule ‘statement' or ’sign and seal' of a writer is required in documentary evidence. But it is inappropriate to impose same requirements on digital evidence and documentary evidence, so that electronic signature and activation improvement of technology to support this are necessary. Also digital evidence shall be subject to the exclusionary rule in the criminal procedure law. All steps taken for its collection, analysis and storage need to be lawful in procedure. Given the massiveness and opacity of digital evidence, it is deemed inevitable, to some extent, to issue general search and seizure warrants. But the objectives of warrant execution should be limited to a scope probably related to a crime in the time when search and seizure warrant is issued and executed.. Digital evidence which is the new form of evidence to crime makes little difference in value and function with existing evidences. As time goes on, digital evidence will be the important part of the collection and the admissibility of evidence. Explicit provisions for procedure and admissibility in the criminal procedure law are necessary to eliminate the confusion of law-imperfection.