Robotics & AI Ethics

The issue with digital evidence has been discussed continuously in Korea because its unique characteristics such as independence, invisibility, mixture. In this sense, question is that whether or not the principles of tradi-tional Criminal Procedure Act can make application to digital evidence. This thesis focus on investigative agency that cope with seizing digital information that is not related to crime. When investigative agency seize digital information, most of them are not original evidence but copied evidence according to article 106 of Criminal Procedure Act. Thus, this study examines whether or not the investigative agency should get search and confiscation regarding another digital evidence despite having copied image evi-dence. This thesis points out that precedent cases that judge investigative agency should get another search and confiscation in order to continue investigation should be criticized because it can hinder dynamics of investigation. However, in the case of independent search and confiscation, abuse of authority can concern. So, the thesis insists jurisdiction should adopt limited search and confiscation against dangerous power which harm national security. The digital evidence holds unique features like media independence, information with no shape, easy replica-tion, vulnerability, massiveness and network relevance but most regulations in the current criminal evidence act do not presume such digital evidence, creating a vacuum in the legal regulations. The relevant regulations in the current criminal evidence act should be interpreted by considering the feature of the digital evidence. However, the interpretation has limitations in filling the vacuum in the criminal act with established principles in prohibiting the guessing and implementing strict interpretation. Therefore, the criminal evidence act should be amended to cover digital evidence. All the evidence requires sincerity but digital evidence additionally requires unique prerequisites like the identity with the original version, integrity and reliability. Judicial precedents on how to prove such prerequisites have been gradually accumulated but in the long term, specific rules should be clearly developed for law enforcement agencies to follow, and the customs or legislation amendment is required that can accept or guess that the prerequisites above are satisfied if the rules are proven to be observed.

According to this comment, the argument that the investigation method of the national security authority need to be changed can gain persuasive momentum. For the national security investigation to be effective, legal. Systemic devices shall be systemized to fit the recent situation. To put it more concretely, it is necessary to amend the Protection of Communications Secrets Act to enable legitimate execution of monitoring warrant etc. accord-ing to the development of digital technologies in the course of investigation by the investigation authority in national security cases, and to approach with the special provisions on criminal procedure for national security offenders. For example, as the technologies and IT industry developed drastically, the approach to the act to serve the interest of the enemy needs to be diversified. In other words, based on current law system, even though the act to serve the interest of the enemy and behavior of communication with spies(information delivery, in-struction, recruiting personnel, education, publicity, etc) using SNS etc. , the proofs obtained in the course of investigation are incapacitated, as national security investigation is impossible due to the problems such as the declared policy of non-acceptance of monitoring warrant on Kakao Talk messenger and non-acknowledgement on statements of evidence on national security offender etc. Accordingly, in consideration of domestic situation where telephone communications within the territory or with foreign territory are to be monitored for the pur-pose of national security but cannot be submitted to the court as proof, it is necessary to progressively embark on special legislation in consideration of the special characteristics of spy investigation by systemizing mobile phone monitoring or restriction on the right to interview and communicate with counsel and closed trial etc. The national security criminal exemption law systems in advanced overseas countries are connected to the power of law enforcement institutions. In case of information or investigative agency enforcing legal system, the retrogression of evidence rule or related policy according to the criminal skills developing every day causes con-traction in information or investigation activities. Of course, the strict criterion of compliance with due process by the Constitution, but without acknowledgement on the advanced country-type evidence rule or exemption pursuant to criminal procedure, terror or spy suspect is arrested through intelligence or investigation activities but the evidencing power may be denied at the trial stage, causing demoralization and contraction on investiga-tive activities. In addition, if the legal system cannot trace the corresponding criminal skills, then the investigative activities would be contracted and crime prevention effect would not be anticipated. This is because any re-striction on investigation activities on even the crime that could cause serious threat to the benefit and protection of the social or national law such as terror or spies due to an inferior legal system can revive the nightmare of another 9/11 terror. Within the new security environment of the threat of international terrorists and the division into North and South co-existing, Korea’s legal system and policy cannot respond to the new national security situation with old-fashioned position and complacent attitude. In such a new security environment. a new ap-proach is required at this point in time.

While China achieved the fastest economic growth in the world since it actively adopted market economy after its economic reform, it also saw increase in various crimes. There is very little research done on the Ministry of public security of the people’s republic of China, but based on the previous research, the types of crimes can be summed up as following. Firstly, the crimes in China are becoming organized and are becoming a commercialized profession. Secondly, the Chinese crime organizations are covertly managing their fund circulations through 3rd party bank accounts and virtual accounts on the internet. Thirdly, every time a new type of industry emerges, a new type of crime exploiting the industry grows rapidly. Meanwhile, under the Chinese planned economy, the MPS had a major role on many components of social life in China. For example, the relationship among the MPS, the prosecutors and the court clearly shows that the MPS is relatively higher in status, and its authority is encroaching the Ministry of Civil Affairs of the People’s republic of China, China administration of Taxation, and China Administration of Industry and Commerce, and is in need for a change through a reform. Meanwhile, after achieving a rapid economic growth since the 1960’s(83.1%), South Korea ranked first in human rights protection and international policing cooperation in the “Crime Index for Country 2015 Mid-Year”. The authority of China’s MPS is a part of national administrative authority, which comes from the people. Therefore, one must consider whence the authority exercised by the MPS derives. Here are some problems of MPS identified in this research. Firstly, the Chinese MPS is inefficient in tasks that utilizes human resources within the jurisdiction. Secondly, it is difficult to communicate the information related to crimes collected by the MPS efficiently. Thirdly, the MPS has limited ability in cutting the criminal funds. Fourthly, the MPS fails to fully cooperate in criminal investigations. Fifthly, MPS demonstrates an incomplete cooperation in Crime prevention tasks. Therefore, to keep up with the rapidly grown economy, various discussions on the role of MPS and an inter-national cooperation on the safety of people will become necessary.

Korea is ranked a top country in the aspect of digital technologies, device production and distribution. How-ever, the decisive digital evidence achieved by observing proper legal procedure based on the warrant issued by the Ministry of Justice loses its admissibility in the process of the trial upon the refusal from the accused. Here, most defendants do not admit the admissibility as the party with the opposition to the government during the criminal trial on the digital evidence which plays a decisive role in forming the confident belief of the judge while having direct and indirect relations to proving criminal charges, requiring serious discussions. The object sincerity of the data shall be proven for the digital evidence to be proven with the admissibility in the criminal trial. The proof on the sincerity is about the legal procedure law like the proof on the voluntariness and enough by the free proof from the judge. There are issues judged by free proof with various methods from the judge including whether the HDD is confiscated by the defendant, whether to verify hashes in all the HDDs despite taking a long period of time, whether to sample mobile memories or some HDDs with low capacity and follow the testimony of the investiga-tors or witnesses, whether to verify with the write protection device for the original copy and whether to write the image for the verification with a copy in the legal procedure. In addition, the data identity among media shall be accepted and in the verification process, the mechanical accuracy of the computer, program reliability, professional skills and accuracy of the operator for input, process and output shall be secured. In short, the electronic document with the statement of the defendant may be taken as evidence if the sincerity of the document is proven and the statement is especially provided under the reliability even though the defend-ant denies the sincerity regarding the hearsay rule of the digital evidence. This means the circumstantial security of the reliability on the evidence and the prosecutor shall specifically claim and prove the existence but the free proof is enough for the fact in the legal procedure. In addition, the admissibility may be provided by a relevant clause if the electronic document saved to the computer, Internet and SNS posts and e-mail are included in the exemption of the hearsay rule in the Criminal Procedure Act as the hearsay evidence.

The Korean Peninsula is one and only divided country around the world, which has been divided since the cold war system caused by ideological conflict. In this context, there have been ideological conflicts in our Korean society. The North Korean spy cases or the unconstitutional dismissal of political party have been related to the na-tional security issue up to now. Whenever such incidents break out, many issues heat up our society, including the existence and safety of our country, the meaning of democracy and the existence of people who are pro North Korea. However, such cases may not be seen from the prospect of ideological conflict, but from that of national law on how constitutional law and order will be established. Assurance of national security is a precondition to protect people‘s safety, life, freedom and rights. The Con-stitutional law Article 1-2 states that a nation´s sovereignty shall lie in people and all the rights of the nation shall come from people, which means the subject of a modern democracy and constitutional country. However, it is important that people herein means the whole people, and the interest of the entire nation takes precedence over that of an individual person. In this regard, the Constitutional law Article 37-2 states that all freedom and rights of the people may be limited by law in order to guarantee national security. Unlike in the past, all the rights of an accused person or a criminal defendant are now guaranteed according to the Constitutional law and laws even for national security related cases, including the principle of legal process, the presumption of innocence and the principle of legality. Therefore, national security related cases such as a spy case, does not depend only on such a suspect's own confession or evidence like in the past custom of investi-gation. Under the current legal system, it will be difficult to give criminal punishment, unless they have clear evidence on a spy or terrorist. The bottom line is that today's national security needs to be beyond the conventional concept, and be consid-ered within a new paradigm where the concept of comprehensive security is focused across an individual and society. In order to ensure national security, it needs to be achieved based on each legal basis. The concept and scope of national security plans need to focus on the concept of comprehensive security, based on National Se-curity Law, National Intelligence Service Act, spy and important counterespionage investigation, and important leftist investigation.