형사소송에서 디지털증거의 조사방법에 관한 입법론적 고찰-특히 민사소송의 경우와 비교하여-
- 형사소송에서 디지털증거의 조사방법에 관한 입법론적 고찰-특히 민사소송의 경우와 비교하여-
- Other Titles
- Legislative study about investigation of Digital evidence in Criminal Procedure - Especially compared with the case of a civil lawsuit -
- Digital evidence; Media independence; Evidential element; Examination of evidence; Evidence Law; 디지털증거; 매체독립성; 증거요소; 증거조사; 증거법
- Issue Date
- 비교형사법연구, v.14, no.2, pp.49 - 72
- Recently, as the frequent use of digital evidence, many researches are underway actively to collection and admissibility of evidence about the Digital evidence. But the way of investigation in court, it seems like not entirely satisfactory. The method of Investigation of digital evidence, must examine definition of the concept of evidence and characteristic of digital evidence. The media independence which is the essential characteristic of digital evidence works very importantly in the "Evidence gathering" stage.
But in "Examination of evidence" stage which normally submitted as in the state of already been collected and tied to a particular media to the court,its importance can be weak. Moreover, it is difficult to fix and explain about the Media independence of digital evidence just by the concepts of existing method of evidence and evidential data. So, when identify the specific elements as 'evidential element' which can be the evidence glued with method of evidence, then it can explained that be the evidential ele ment itself. For investigation of digital evidence which glued in various media, these following things will be taken as features. The examination of evidence needs the conversion of evidence which has legibility by using the machinery. The examination of evidence needs the conversion of evidence which has legibility by using the machinery. Even if the digital evidence the examination of evidence for the original, etc.
Based on these points, looking under Article 292-3 of the Criminal Procedure Law and the rules under Article 134 of between 7 and 9, the evidence of Digital, Analog and non-electronic are mixed in only one provision, Interpretational confusion has been caused. So, non-electronic evidence absorbs to the Criminal Procedure Law Article 292-2 and retain only retain Electronic evidence on Article 292-3 and keep the separate regulations about digital evidence, It would be desirable. In addition, in the rules, regulate the investigation of original with the output, as well as voice and sound recording tape, etc. like this, regulate all together it seems like more better way.
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