All Articles

  • Today, the digital revolution has completely changed all areas of society, and the evidence of crime has also become digitalized. Therefore, it is no exaggeration to say that the success or failure of investigation to reveal the truth depends on how digital evidence is secured and recognized. In this way, our society is rapidly changing into a digital society, but the law has not been completely restored, and it maintains the analog legal system of the past. In other words, the provision related to digital evidence is only Article 106(3), (4) and (313) of the Criminal Procedure Act. However, these few words alone cannot solve all the problems related to digital evidence. This study is based on the evaluation of the problems of Article 106(3) and (4) of the Criminal Procedure Act and recently revised Articles 313 and 314 of the Criminal Procedure Act, the purpose is to present a new legislative alternative. Current deficiencies in the acceptability of digital evidence should be addressed through amendments to the law. First of all, the digital evidence corresponding to the specialization is subject to the existing special law, so there are certain limitations on the ability of evidence. However, there are exceptions to the special law, I believe that it is reasonable to allow valuable evidence that is essential to substantiate the fact. And any digital evidence that does not contain a statement should be able to acknowledge evidence capability only if it is proven authentic to establish the truth and credibility of the data. That is, errors in systems and soft-ware, and authenticity requirements to ensure the reliability of digital evidence exposed to the risk of unauthorized access, has proven that there has been no such error or danger. The accuracy and reliability of the system and the procedures are mainly presented as such authenticity verification methods. However, more specific requirements for the authenticity of digital evidence should be laid out in a manner that is based on technical standards established by experts, but can be easily applied to legal judgments
    Keyword:Digital Evidence, Search and Seizure, Participation Rights, Cooperation Duty, Password Submission Order System
  • The provisions of the “Act On Anti-Terrorism For The Protection Of Citizens And Public Security(Act on Anti-Terrorism)” of 2016, which are concerned with the limitation of the human rights, have been continuously dis-cussed since the 18th National Assembly, and the provisions of the current law have balanced at least the security rights of the people and the fundamental rights of the human rights. However, there is a system deviating from the center of the controversy even though there is a possibility of infringing on the fundamental rights of the people. It is the right of investigation by the staff of National Intelligence Service prescribed in Articles 2 and 9 of the Act on Anti-Terrorism. The investigation of the “Act on Anti-Terrorism” is similar to the preliminary domain investigation in Germany, but it is futuristic in that it aims to prevent crime, but at the same time, And the process of searching for relevant information in a situation where the existence of the allegation is uncertain. The problem is, in principle, that there is no provision on the subject, scope and limitations of the right to investigate, even though the exercise of the investigation, which has a precautionary nature, may infringe the fundamental rights of the people as de-scribed above. First, this study explores the legal nature of the right to investigate “Act on Anti-Terrorism” and opens up the possibility of applying the due process principles. Next, I pointed out the problems of criminal law in the field investigation and submission order system, which is the concrete type of investigation, and suggested ways to improve them. In other words, the specific type of investigation is substantially similar to the compulsory disposition, and the lawful procedure such as the constitutional warrant is stifled as the cause of the investigation. In this study, we explored problems and remedies for field investigation and submission order, which are highly similar to those of forced disposal.
    Keyword:Terror, Investigation, On-Site Investigation, Requirement of Submission, Due Process
  • With the advancement of globalization, countries are struggling with crimes by foreigners in their own coun-tries. Republic of Korea(ROK) is no exception, and it has already reached the age of 2 million foreigners staying in ROK, and crime by foreigners is also increasing. In particular, not only conventional military and political secu-rity but also comprehensive security have attracted attention, and crimes such as drugs and international crimes by individuals or organizations have become a threat to national security. In this respect, it is the strengthening of immigration control by foreigners that can block crime for national security. There is a current Immigration Control Act with a statute to examine the identity of such foreigners. Since the current immigration control law resurrected the fingerprint seal system for foreigners abolished in 2003, there is a conflict between the criticism of unfair discrimination against foreigners and the effective method of restricting crime by foreigners staying abroad. In this article, we will review the brief description of the fingerprint and face information collection system in the present Immigration Control Act and the purpose of the legislation. Based on this, we examined why the system that was abolished in the past revived, focusing on expected benefits and considerations. Although many things can be considered in the first place, the most important thing is to prevent illegal im-migration by re-entry of persons who have committed crimes in the past or identity laundering by illegal immi-grants as well as efficient immigration examination, thereby reducing the risk of crime by foreigners It is expected. In addition, it is possible to prevent cases of settlement and further crimes by quickly identifying the identity of foreign criminals, and even if foreigners are injured, it can be solved quickly. In this case, violation of the principle of excessive prohibition and infringement of personal information self-determination right of information subject may be a problem, but the biometric information system is not suffi-cient for the purpose of legitimacy of purpose, adequacy of method, balance of legitimate interests, And that it does not infringe on the right of self-determination of personal information of information subjects.
    Keyword:Visa, Immigration Status, Immigration Act, Fingerprint and Face Information Collection System, National Security
  • Due process, discovery of substantive truth, and the timeliness and efficiency of the procedures are the values of criminal litigation are still valid principles in the age of digital information. However, the way to implement these principles according to the properties of digital evidence remains as a challenge, and the field of digital evidence requires close cooperation between legal and technical sectors. In particular, the level of production and distribution of digital technology and digital devices in Korea has maintained the highest level in the world. Nonetheless, it is a reality that if the defendant denies the crucial digital evidence obtained in accordance with the due process by a court issued by the judiciary in the trial process, the evidence is denied. As a result, most defendants do not recognize evidence as a counter-party to the state during the criminal trial for digital evidence that is directly or indirectly related to the assertion of the criminal's own crime, Discussion is needed. In addition, even in the case of a recent series of events related to national security, the general law of criminal justice is applied to digital evidence as it is, so it is necessary to examine the exceptional rules for applying the special law on serious infringement of legal interests. In addition, the criminal evidence law for the serious crimes that occur in the digital information age is also implemented professionally and covertly. Therefore, the legisla-tion that appropriately reflects the current situation and environment of digital information is necessary.
    Keyword:Digital Evidence, Admissibility, Hearsay Rule, Due Process, Criminal Evidence Rule
  • Because South and North Korea have kept the military confrontation since the Korean War seriously, it has been strongly believed that an arms race should exist between these two countries. However, because of the lack of data on North Korea has constrained empirical studies, until now, few studies have consequently dealt with the arms race between South-North Korea. An empirical analysis of the arms race between the two Koreas has significant policy implications for the security of the Korean Peninsula as a whole. Using the VAR model and updated data, this study empirically analyzed the arms race between South and North Korea, based on Richard-son’s action-reaction model. The empirical findings are as follows: while South Korea’s military expenditure changes are affected by those of North Korea, partially supporting the classical Richardson model as a result, the reverse remains unverified. In fact, this investigation indicates that North Korean military expenditures seem to adhere to the random walk process, and empirically supports the argument that North Korea has pushed for military expansion based on its strategic needs, with South Korea escalating its armament program in direct response. The fact that North Korea’s real military expenditure follows the random walk process indicates that it cannot be predicted at all. There may be some interpretations in terms of the random walk process of North Korea’s real military expenditure. First, it can be interpreted that North Korea’s military preparedness has been determined without any strategic plan. The situation at the time may affect North Korea’s decision on military preparedness. Secondly, considering that North Korea has developed nuclear and missile programs over a long period of time, it cannot be denied that North Korea has kept a long-term strategic plan for military preparedness. Then, it may be said that irrespective of the expansion of South Korea’s military preparedness, North Korea has decided its policy toward military preparedness based on internal strategic goals such as its development and enhancement of asymmetric warfare capabilities. Finally, North Korea has been reported to hide its defense expenditure in other budget categories in order not to reveal how much of its government budget is allocated for this cause. In this respect, more accurate data on North Korea’s military expenditure needs to be collected to have better insight into the arms race between South and North Korea overall. Considering those questions of accuracy surrounding North Korean military expenditure data, the follow-up studies are warranted.
    Keyword:South-North Korean Arms Race, Richardson’s Action-Reaction Model, Military Expenditure, VAR, Random Walk Process
  • What I wish to show in this paper is to inquire whether we can justify war or not by using these normative ethical systems, if possible, what the logic justifying the war is. Teleological ethics and deontological ethics are often contrasted with one another on the basis of the general type of ethical system each exemplifies. Utilitari-anism is one of the teleological ethical system, while formalism is typical of deontological ethical system. The distinction between the two kinds of system may be conveniently summarized as follows; a teleological theory holds that an action is morally right either if a person's doing it brings about good consequences, or if the action is of a kind which if everyone did it, would have good consequences. It is ultimately the goodness or badness of the consequences of action. In Deontological theory, it is right if it accords with a moral rule, wrong if it violates such a rule. Moral rules are based on an ultimate principle of duty which, in contrast to teleological ethics, does not specify an end or purpose whose furtherance makes actions right. What the ultimate principle specifies is a set of conditions that are necessary and sufficient for any rule of moral obligation to apply to a kind of action. Consequentialist pacifism is usually grounded in some sort of rule-utilitarianism. A utilitarian pacifist may argue that a rule against war or other sorts of violence will tend to promote the greatest happiness for the greatest number. According to the principle of proportionality, although violence is evil, if we may suffer greater other evil than the evil, the violence which eliminates relatively the previous smaller evil could be justified. A broader pro-hibition against violence other than war can extend the ‘greatest happiness’ concept to take into account the happiness of sentient beings other than humans. Deontological ethical system, as a formal ethical model, is the older of the two, with the best-recorded example of antiquity being divine command theory. This theory states that an action is good or evil depending on whether it corresponds to rules set by a deity. The most famous theory of deontological ethics is Kant's. Kant's categorical imperative is formulated as follows: “Act according to that maxim by which you can at the same time will that it should become a universal law”. It is difficult to supply content to Kant’s imperative. Thus, it is not clear that the Kantian imperative can be used to rule out war. Indeed, Kant is a defender of a version of the just war theory, in part because he believes that states have a duty to defend their citizens. Although Kant is not himself a pacifist, one might be able to ground pacifism in Kant's alternative version of the moral law: “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only” All human being has the autonomy of the will explained as the concept of freedom. If men have freedom of the will then they must be obligated to obey the categorical imperative. Thus whoever has freedom of the will should take responsibility for his behavior, unless he won’t do. And as this can be universalized and applied to men with reason, anyone who violates moral law should be pun-ished to preserve the life in community. This principle of deontological ethical system is extended to the conduct of human being in war.
    Keyword:Justice, Teleology, Deontology, Principle, Proportionality
  • 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.
    Keyword:Justice, Electronically Stored Information, Seizure and Search of Electronically Stored Information, Warrant in Principle, Seeking for Selection
  • 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.
    Keyword:National Security Criminal Law, National Security, Terrorism, Privacy, Criminal Procedure Exception
  • 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.
    Keyword:Criminal Law, Economic Growth, Ministry of Public Security of the People’s Republic of China, Korean Police, People’s Safety
  • 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.
    Keyword:Hearsay Rule, Digital Information, Digital Evidence, Admissibility, Hearsay Evidence