Right to participate in the seizure and search of voluntarily submitted information storage media

The development of Internet technology and the commercialization of digital devices such as smartphones have led to a digital society in which not only the daily lives of ordinary people but also evidence of crimes are recorded in digital form. However, the Criminal Procedure Code remains the same as the Code enacted in the analog era, except for introducing the ‘selective copy seizure and exceptional media seizure rules’ in Article 106(3) on 18 July 2011 about the seizure of electronic information. Without legislative action to adapt the Criminal Procedure Code to the digital society, the Supreme Court has handed down precedents that shape the procedures for seizing and searching digital evidence, effectively legislating through precedent. In the case of a victim's voluntary submission of a mobile phone belonging to a suspect (2016 No. 348), the Supreme Court first established the legal principle that the ‘principle of guaranteeing the right to participate’ under Article 219 and Article 121 of the Criminal Procedure Act must be applied to ‘substantive seizure’ in addition to ‘formal seizure’. However, the concept of ‘actual seizure’ is not defined in the Criminal Procedure Code, its scope is ambiguous. Since the judgment in 2016 (348), there has been a lack of consensus among the courts as to the meaning and scope of ‘actual seized person’ in the seizure and search of information storage media, making it more difficult for investigative agencies to determine who has the right to participate in the seizure and search process, and clarifying legislation is needed. In this article, we examine the provisions underlying the Right to Participate in the Seizure and Search of Voluntarily Submitted Information Storage Media, their interpretation, and the problems with recent Supreme Court precedents, and discuss ways to improve them.