전자적 저장매체를 이용한 공소제기 가능성 = Prosecution using Electronic Data Storage Devices

다국어 초록 (Multilingual Abstract)

This is a treatise on the legality of the practice of attaching the crime counts exhibit as the part and parcel of the indictment or information (hereinafter referred to as ‘indictment’). Recently, the Korean Supreme Court decided the exhibit will not be considered as a part of the indictment.
In Korea, it became conventional that the prosecution attached the exhibit of the crime counts stored in CD-ROM because the printout of the voluminous crime counts, such as those of the copyright infringement and the privacy infringement, bloats to the tune of several millions and tens of million pages. But this time, the Supreme Court decided that this kind of practice is not tenable anymore.
But this decision of the Supreme Court seems at odds with the plain interpretation of the current criminal procedure law because ‘whatever is attached to the content of the indictment constitute a part of the whole indictment’ is the literal construction of the text of law.
Moreover, it is strange to render it illegal when indictment attach the footnote that the crime count is so voluminous that the specifics will be appended in the CD-ROM format and actually appends the crime counts exhibit. It is not only illogical but also impractical to interpret that the appended crime exhibit is out of the scope of the indictment or is overstepping the bounds of the court hearing.
It is well known that, in certain types of crime, such as the copyright infringement or the privacy infringement, crime counts exhibit extend to tens of thousand pages. If we stick to the traditional notion that all the crime counts should be presented in the physical document format, it will be not only impractical but also tremendous waste of efforts and expenses.
If we take into account the recent development that the electronic document usage steadily replacing the paper document usage in civil and criminal justice system and peoples are sufficiently accustomed to the data storage devices, providing the crime counts exhibit in the form of electronic storage will be conducive to enhancing the interest of the defense if we take into account that it is time-saving and efforts-saving to analyze and archive the case record in the electronic platform.
It is the right time to revise the criminal procedure law to avoid the controversy on the permissibility of the presenting the crime counts exhibit in the form of the electronic storage. It will be desirable to allow the prosecution to present the crime counts exhibit in the form of electronic storage unless it will curtail the right of the defendant and if it will meet the practical necessity of the court to authenticate the crime counts of the indictment.

참고문헌 (Reference)

• 1 이재상, "형사소송법" 박영사 2016
• 2 노명선, "형사소송법" 성균관대학교 출판부 2015
• 3 김성룡, "컴퓨터용디스크・정보저장매체를 이용한 공소제기" 한국형사소송법학회 8 (8): 63-95, 2016
• 4 이기옥, "전자적 저장매체를 이용한 공소제기― 대법원 2016. 12. 15. 선고 2015도3682 판결을 중심으로 ―" 법학연구소 37 (37): 179-196, 2017
• 5 배종대, "신형사소송법" 홍문사 2013
• 6 신동운, "신형사소송법" 법문사 2014
• 7 손동권, "새로운 형사소송법" 세창출판사 2016
• 8 "법원실무제요 형사[Ⅰ]" 법원행정처 2014