초록/요약

In these days a mobile phone comes into wide use and many crimes are frequently committed by means of mobile phone. For example many persons are prosecuted because of taking photographs in the subway etc by using a camera of mobile phone. So much evidence of a crime is stored in mobile phone. Constitution declares the principle of warrant in case of seizure or search(Article 12 Paragraph (3), Article 16). But nevertheless both Constitutional Court and Criminal Procedure Act admit the exceptions of the principle of warrant. Those are Article 216, 217, 218 of Criminal Procedure Act(hereinafter referred to as “CPA”). Article 218(Seizure without Warrant) of CPA provides as follows : A prosecutor or senior judicial police officer may seize an article which has been discarded by a criminal suspect or any other person, or those which have been voluntarily produced by their owner, possessor, or custodian without a warrant. The purpose of this paper is to review the applicability of Article 218 of CPA to seizure without warrant at the locus of the arrest, the duty of announcement or not of right to refusal of voluntary submission and the necessity of issuance of warrant of seizure or of search when a prosecutor or senior judicial police officer detects and collects the data stored after seizure without warrant of voluntarily submitted mobile phone. My conclusions are as follows: 1. Article 218 of CPA is applied to the seizure of mobile phone without warrant at the locus of the arrest and it’s not necessary to be issued a warrant of seizure by a judge of the district court after the arrest. When the mobile phone has been voluntarily produced a prosecutor or senior judicial police officer does not have the duty to announce the right to refusal of voluntary submission. And it’s not important whether the submitter is conscious of the right to refusal or not. The articles which have been voluntarily produced are thought to be used as evidence or liable to confiscation, only when such articles are deemed to be connected with the suspected case. 2. After a prosecutor or senior judicial police officer has seized the mobile phone being voluntarily produced at the locus of the arrest, he may search and collect the data stored in mobile phone with a seizure warrant issued by a judge of the competent district court. As a result the criminal suspect, or his/her defense counsel may be present when a warrant of seizure is being executed.