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종근당 결정과 가니어스 판결의 정밀비교 KCI 등재

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刑事判例硏究 (형사판례연구)
한국형사판례연구회 (Korean Association of Criminal Case Studies)
초록

1. The Supreme Court of Korea (hereinafter KSCt) handed down a very epoch making ruling (abbreviated as ‘Chong Kun Dang Decision’ hereinafter) about the search and seizure of digital evidence in 2015. Until now 7 articles have been published, which took the commenting of this decision as the central theme and did the following discussions seriously. In this paper, I intend to focus on identifying what the Chong Kun Dang Decision means and what are grounds of the ruling rather than criticizing any argument and ground. This is because the conventional analyses are not successful in explaining the exact meaning of Chong Kun Dang Decision.

2. With the Chong Kun Dang Decision, the issue of “the first issuance of warrant for the search and seizure of evidence related to the alleged abuse of trust → the carrying out the execution of warrant(physical seizure ⓐ, removal of the information storage medium at the scene) → ‘physical seizure ⓑ’ (imaging duplication) → searching for digital information (off–site search) → in case of accidental finding of the irrelevant information, does the investigating agent become obliged to delete irrelevant information?” emerged as an urgent issue. Although Lee Wan–gyu (2015) and Park Min– woo (2016) already discussed this issue, a more in–depth inquiry is necessary.

3. The methodology of this paper is as follows. The 2014, US Second Circuit panel handed down a ruling (United States v. Ganias) seems to have given some impression to the formation of a majority opinion (and separate opinion, supplementary opinion) of Chong Kun–dang decision. Therefore, it is necessary to compare precisely the issues and arguments of the ‘2014 Ganias panel ruling’ and the Chong Kun Dang decision. In this context first of all I attempted to reconfigure the facts of two cases for precise comparison in chapter Ⅱ.

4. In chapter Ⅲ, I try to make a precise comparison of the grounds of Chong Kun Dang Decision (2015) and Ganias panel ruling (2014). The focus of the comparisons are as follows. First, is there an obligation to the investigating authority to delete and discard irrelevant information after separating the related information and the irrelevant information? Second, presence of dominion of the investigating authority on the information that contains related information and irrelevant information. Third, why the deletion of irrelevant information become a problem? Fourth, what is the legitimate response of the investigating agency that witnessed evidence of irrelevant crime? Fifth, conflicts between means (due process) and purpose (substantive truthfulness). Sixth, among series of actions taken by the investigating authority what can be considered as the search and seizure measures of digital evidence?

목차
Ⅰ. 문제의 제기
 Ⅱ. 정밀비교를 위한 사안의 재구성
  1. 종근당 사안
  2. 가니어스 사안
  3. 종근당 사안과 가니어스 사안의 차이점
 Ⅲ. 종근당 결정과 2014 가니어스 소부 판결의 비교
  1. 유관정보와 무관정보를 분리한 후에 수사기관은 무관정보를삭제·폐기할 의무가 있는가?
  2. 유관정보와 무관정보가 혼재된 정보에 대한 수사기관의 지배권의 존부
  3. 무관정보의 삭제·폐기의무 불이행이 왜 문제인가?
  4. 별건범죄의 증거를 목격한 수사기관의 적법한 대응
  5. 수단(적법절차)과 목적(실체적 진실주의)의 충돌
  6. 수사기관의 일련의 행위 중 어디까지가 압수인가?
 Ⅳ. 결 어
 [참고문헌]
 [Abstract]
저자
  • 심희기(Professor, School of Law, Yonsei University, Ph.D in Law.) | Sim, Hui-gi