정보기술의 발전으로 인하여 저장된 디지털 정 보의 양이 기하급수적으로 늘어남에 따라 형사사 건에 있어서 디지털 정보가 범죄를 입증하는 유력 한 증거로 사용되는 경우도 늘어나고 있으며, 압수 수색을 통한 디지털 증거의 적법한 수집은 형사절 차에 있어 매우 중요한 부분을 차지하게 되었다. 디지털 증거의 매체 독립성, 비가시성, 비가독 성, 취약성, 대량성, 네트워크 관련성 등의 특성과 관련하여 2011. 7. 18. 법률 제10864호로 개정된 현행 형사소송법은 디지털 증거의 압수수색을 고 려하여 관련성 요건을 추가하고, 압수수색의 방법 에 관하여도 명시한 바 있으나, 근본적으로 디지털 증거 그 자체를 압수의 대상으로 볼 수 있는지 여부 를 밝히지 않았다. 그러나 형사소송법의 관련 규정, 대법원 판례에 비추어 볼 때 현행 형사소송법상 압 수수색의 대상에는 무형의 디지털 증거도 포함된 다고 해석함이 타당하고, 압수의 방법에 있어서는 개정 형사소송법 제106조 제3항에 따라 원칙적으 로 기억된 정보의 범위를 정하여 출력하거나 복제 하여 제출받고, 예외적으로 범위를 정하여 출력 또 는 복제하는 방법이 불가능하거나 압수의 목적을 달성하기에 현저히 곤란하다고 인정되는 때에 한 하여 정보저장매체를 압수하며, 사후에 판사로 하 여금 그 예외적 사정 유무에 관한 판단을 하도록 하 여야 한다. 또한 사전적으로는 법원에서 압수수색 영장을 발부함에 있어 압수방법을 제한함으로써, 사후적 으로는 포괄적 압수수색이 이루어진 경우 관련성 있는 증거까지도 위법한 절차에 의하여 수집된 증 거로 보아 증거능력을 부정함으로써 포괄적 압수 수색을 예방할 수 있으며, 근본적으로는 형사소송 법에 디지털 증거를 압수수색의 대상으로 명시하 고, 디지털 증거의 특수한 압수수색 절차에 관하여 규율하는 입법적인 보완이 이루어져야 할 것이다.

The 2011Mo1839 ruling of the Supreme Court of Korea decided on July 17, 2015 that the course of retrieving the data storage device or the legally copied files, printing and copying the information related to the accused case is regarded as a part of the total search and seizure procedure under a warrant. And the ruling described that those printed and copied objects are limited to the scope which is relevant to the accused crime under a warrant. In addition to that, the Court ruled that during the total course of retrieving, printing and copying, the presence right of those subject to seizure shall be guaranteed. By the ruling, it would illegal to print and copy relevant digital files mixed with information which is not relevant to the accused crime or not to guarantee the presence right of those subject to seizure. This ruling maintains a point of view the Court's 2009Mo1190 ruling. Especially, the requirement that seized articles shall be deemed to be relevant to the accused case has benefits of making general searches under warrants impossible and preventing the seizure of things irrelevant to the case under a warrant. But those rulings are open to a lot of questions if the balance with the due process law and the truth-finding function of the criminal justice process is being maintained. There are various opinions about the construction and interpretation of the Criminal Procedure Act, such as the object of seizure, the time of completing the search and seizure, the scope of those whose presence right are guaranteed, the difference between physical evidence and digital evidence in the execution of search and seizure warrant. If it is not sure when the search and seizure is completed, the procedural guarantee including the presence right would make the truth-finding function and the legality of search and seizure highly fluid and unsettled. And those confusion and inappropriate restrictions will cause the execution inefficiency of the warrant and impose a substantial burden upon the administration of the criminal justice process. Therefore, enthusiastic discussions of digital evidence seizure should proceed and lead to a law-making solution to strengthen the truth-finding function of the criminal justice process while preserving the due process law.

It is defined that digital evidence is all valuable information as evidence that is preserved and delivered in digital form, the salient traits of its character is independent from a storage, invisible, unreadable etc., it must be solved authenticity, reliability, best evidence for the purpose of its admissibility.In our criminal procedure law, the evidence is classified into two types, statements and objects, objects as evidence are composed of documents and things, it could be included statements by a person or not in documents as evidence. In essence digital evidence is regarded as documents evidence so hearsay-rule is applicable to it.To acquire admissibility of digital evidence made by a person it is important that the person acknowledges his digitals documents produced by him-self according to the criminal procedure law art. 313① in a court but the opinion that only the acknowledgement by a writer can give admissibility of digital evidence is very dangerous in criminal procedure because it may make valuable evidences useless things.In the revised criminal procedure law new solution is imposed in it. Even though a person deny its contents in a report said by him-self for example “I didn’t talk like that in a report”, prosecutor could prove that a report made by a investigator is credible and exact in the objective way including recording video-tape etc., the admissibility of a report evidence can be achieved recognition.This revised purpose must be regraded as a new basis in evidence law totally, even if a person deny his digital document made by him-self for example “I didn't make digital document like that”, prosecutor could prove that a digital document is made by him-self in the objective way including analysis meta-data etc., “it is you who made this digital document”, the admissibility of a digital document evidence could be achieved recognition. if to prove who made a digital document evidence end in failure, its admissibility have to be reviewed again according to criminal procedure law art. 315, valuable digital evidence must not go into the dumper easily.Anyone talking about evidence in criminal procedure cannot help but mention digital information that is essential in it by progress of scientific technology.Much to our regret, there is not at all rule for the purpose of admissibility of digital evidence in present criminal procedure law, as a result many opinions and judicial decisions consider requisites of admissibility of digital document as one of admissibility of non-digital document but an intrinsic attribute of digital evidence is profoundly different from one of traditional evidence.Ultimately I think that criminal procedure law must be revised referring to foreign country’ law to acquire admissibility of digital evidence although a person deny a digital document that is made by him-self, if prosecutor could be successful in pr○○f, “it is written by him-self”, in other words witness or suspect, the digital evidence shall be useful.I wish to be collected g○○d thoughts to prevent that valuable digital evidence may be discharged by only one statement of a wicked-person.