The search and seizure of digital evidence held and stored by a third party and the issue of participant
Authors:   The Korean Association of Criminal Procedure Law, Lee Kyung-Lyul , Kim Dae Hong 
Published: April 2024

Recently, the Supreme Court has emphasized the importance of 'the right to participate of the confiscated person' in the search and seizure process as a procedural tool to prevent illegal excessive seizure of electronic stored information(ESI), and related precedents have emerged one after another. The mainstream of precedents, such as the Supreme Court's decision on May 26, 2011, 2009 Mo110 and July 16, 2015, 2011 Mo1839 en banc decision, regarded the subject of the right to participate in the search and seizure of ESI as the confiscated person. However, in a situation where an investigative agency arbitrarily submits or confiscates an information storage device containing the suspect's ESI from a third party, if the right to participate is just formally guaranteed, the suspect, who is the information owner, is excluded from the procedure and there has been a problem that the legal system cannot effectively prevent illegal excessive seizure. Accordingly, the Supreme Court recently formed the legal principle of the right to participate in the “actual confiscated person” to guarantee the right to participate in the suspect. However, it is said that the right to participate at this time should not be recognized in the position of the suspect, but should have the “exclusive management and disposition of electronic information.” These “exclusive management and disposition” must be held at the time of seizure or near the time. According to the recent Supreme Court's decision on September 18, 2023, the principal offender and the owner of the information storage device who instigated the concealment of evidence do not constitute a “actual confiscated person” who becomes the subject of the right to participate by transferring the “exclusive management and disposition” to the evidence concealment offender.
The Supreme Court cites Articles 121 and 123 of the Criminal Procedure Act as the legal basis for the confiscated person's right to participate. However, those regulations differ in purpose and content, and the attitude of the precedent presented as the basis for the confiscated person's right to participate is not valid without a clear distinction. In particular, the case law on the right to participate of the “actual confiscated person” has a problem of impairing procedural stability because the legal basis is not clear. It is desirable to clearly distinguish the legal principles of the right to participate in the search and seizure of electronic information, which have been led and accumulated by the Supreme Court, according to the purpose and nature of each participant's right to participate, and the basis under the current law, and form a legal principles on the scope of the participant when confiscating information on such legal and logical premises.
Since Article 121 of the Criminal Procedure Act stipulates the defendant's right to participate in the search and seizure, and Article 219 applies mutatis mutandis to the search and seizure of investigative agencies, the suspect is the subject of the right to participate. However, since investigative activities are essentially required to be covert, an exception to prior notice of execution is granted if they fall under the 'case of rapid demand' in the clues of Article 122, such as concerns about destruction of evidence. This does not deny or limit the suspect's right to participate. However, it is not necessary to notify the suspect of the execution at the stage of search and seizure outside the field as long as the execution is initiated without prior notice.
On the other hand, although there is no clear ground rule under the Criminal Procedure Act, the right to participate of the confiscated person is naturally recognized in the overall legal system, or the basis can be found in the regulation of the right to participate in Article 123. The meaning of the confiscated person can be interpreted as being the actual confiscated among the owner o