영장에 의해 취득한 통신사실확인자료 증거사용 제한 규정의 문제점

• 영문명: The Problem of the Ristriction of Using Evidence of Indentification Materials of Electronic Communications Obtained by the Warrrant
• 발행기관: 한국형사판례연구회
• 저자명: 이완규(Lee, Wan-kyu)
• 간행물 정보: 『형사판례연구』형사판례연구 제26권, 395~438쪽, 전체 44쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.06.30

영문 초록

As the interception of communications infringe the close part of the privacy and the degree of the infringement is very serious, the law of protecting the secrecy of communications limits the group of crimes which can be the cause of the interception. As the result, the purpose of the limitation could not be achieved if the materials of evidence would not be restricted to use in investigation and prosecution only for the crimes within the limited group. We could admit the provision §12(1) of the law of protecting the secrecy of communications reasonable, which restrict the scope of the use of the evidence obtained by the interception of the communications. But the indentification materials of electronic communications includes only the names, the telephone numbers of the parties of the communication, the times fo the communication. It does not include the contents of the communications. The degree of the infringement could be said relatively minor and the law does not limit the scope of the crime which could be the cause of the request for the identification materials. Therefore, there would be no reason to limit the scope of the use of the evidence obtained by the request issued by the court. Nevertheless, the provision §13-5 of the law of protecting the secrecy of communications provides that the provision §12(1) which restrict the use of the evidence obtained by the interception apply correspondingly to the indentification materials of electronic communications. From the point of view of legislation, the provision §13-5 could be said inappropriate and should be eliminated in the future.

목차

[대상판결 1] 대법원 2017. 1. 25. 선고 2016도13489 판결

[대상판결 2] 대법원 2014. 10. 27. 선고 2014도2121 판결

Ⅰ. 서

Ⅱ. 압수 대상물 제한 개념으로서의 관련성

Ⅲ. 적법하게 압수된 증거의 사용범위와 제한

Ⅳ. 통신비밀보호법상 증거사용제한 규정의 해석

Ⅴ. 결어: 입법론

키워드

감청 통신사실확인자료 관련성 증거사용제한 영장주의 interception of communications indentification materials of electronic communications correlation restriction of the scope of using evidence warrant principle