Our criminal procedure code maintains the system based on physical space without any consideration of digital evidence's characteristics. But, digital evidence has characteristics different from existing physical evidence, so it must be treated differ ...
Our criminal procedure code maintains the system based on physical space without any consideration of digital evidence's characteristics. But, digital evidence has characteristics different from existing physical evidence, so it must be treated differently from existing evidence for the procedure of seizure and search. While numerous digital evidences which have been collected and analyzed are used as evidences in the court in Korea, any related issues are almost none existent. However, as the scope of digital environment expands, it is predicted that they will soon be dealt with in the court because it is inevitable that the digital evidences will also increase. Therefore, the digital evidence should be included in the code of criminal procedure as soon as possible. In Korean Code of Criminal Procedure, there is no method to prove the authenticity of digital evidence. However, since the digital evidence as non-hearsay evidence can sufficiently be used as evidence, the stipulated provision is required for this case. However, for the digital evidence to be used as evidence, the authenticity must be proved. Nevertheless, the proof of authenticity is limited in terms of the efficiency of litigation. Therefore, for the case where the digital evidence was collected through a special procedure such as digital forensic, it is necessary to make such proof straightforward. Since the current Criminal Procedure Act defines the criminal procedure by presupposing the material evidence. The legal evidence for Digital Forensics is not provided. In order to establish Digital Forensics legal system, the legal evidence for Digital Forensics should be primarily developed in Criminal Procedure Act. In evidence collection step, it needs to be stipulated that the digital evidence becomes the subject of search and confiscation, and in evidence submission step, the method of proof to allow the admissibility should be developed. To improve legislation, exact investigation on the actual condition is so necessary that this study examined the actual condition by targeting suspects and lawyers to know cases of human rights infringement generated during the process of digital evidence collection. Through this examination, this study aimed to prepare for human rights-friendly procedures of investigation that will reflect the interested parties’ opinion by doing an in-depth analysis of problems and matters to improve that the interested parties argue. While reviewing thoroughly cases on how they are currently seizing the digital storage media, the study analyzed problems of the current methods. In doing so, the study proposed a new idea to seize, trying to realize those principles and exceptions which Article 106 would want to achieve. The study, first, categorized the seizure process of the digital storage media into an exceptional seizure on the spot and another exceptional seizure after moving to a third location, and second, defined acceptable requirements for each of those seizures. By establishing legal system for Digital forensic, the system of criminal procedure code, suitable for ubiquitous period, must be prepared.