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Examination on the Digital Evidence and Hearsay RULE in Republic of KOREA

Vol.1 (No.1) 2016
2016-06-30 12:28


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
  • The rapid development of science and technology in the late industrial society has changed the civilization of mankind rapidly. Especially, due to the development of advanced information and communication technology, the world is free of the barriers between countries so that the word 'global village' disappears. As a result, free movement of people, money, and technology makes economic ripple effect, spreading democracy, I brought it. On the other hand, there are also side effects that can enforce enormous economic damage as well as human life and body, such as the abuse and abuse of nuclear power due to advanced science and technology, serious environmental crimes, unpredictable accidents, It is the dark side of the development of science and technology. The dark side of this technological development is the object that human beings must overcome to exist as human beings and to live a safe life while they exist. To do this, we examine the emerging risks in the transition from industrial society to late industrial society, and the role of the criminal law in coping with these dangerous people and their changes. In other words, as a means of controlling risk, we have examined the legal response, and the change in the concept of legal benefit through transposition of such a criminality and the expansion of abstract dangerous people are suspected to be effective and may adversely affect the fostering of healthy social communities. In addition, it has been confirmed that it is reasonable to abolish this approach because it is possible to promote the quantitative expansion of the criminal law in a clear sense that it copes with a new phenomenon, rather it may even doubt the effectiveness of the criminal law itself. In addition, the problem of management of the risk source is not socially controlled by the state but it is reasonable to go to the social management based on the social consensus of the concerned civil society and the people who have easy access to the risk source. And the administrative law area, it is reasonable to consider the criminal legal action as the ultimate means.
    Keyword:Risk, Risk Society, Risk Criminal Law, Abstract Legal Interest, Excess of Punishment
  • Legal interests are the best value for maintaining a peaceful order in society. The legal interests of penal law is one of the most significant values among others protected by so many laws. The fundamental priciple of criminal law is the benefits and protection of the law, which consists of national, social and individual legal interests. In particular, the national legal interests is related to the existence and security of the state, therefore it is a very important legal benefits. Thus, this study will try to formulate the concept of national secret in order to apply the criminal law accurately. This research has been conducted to draw the concept of judging the national confidentiality based on the principle of legality(nulla poena sine lege). The Supreme Court precedents of the Republic of Korea state that the national confidentiality should not include facts, articles, or knowledge that are already widely known to the general public through proper procedures in Korea. National confidentiality should b e kept as a secret for national interests. To be treated as national confidentiality, there must be a real threat to national security if it were publicly available. In general, there are three criteria for judging national security. First, a ‘theory of formally designated as secrets’ recognizes only the national secret as an explicit indication that the government organization prohibits the public from being known. Second, a ‘practical secret theory’ means regardless of a formal designation as a secret, if the contents of a document is critical to be preserved and it has a substantial value as a secret, which is recognized as confidentiality. Third, a ‘merge theory’ is a position that can become national secret if it has both formally designated and practically valuable as secret. In conclusion, it is reasonable that ‘publicly known facts’ and ‘trivial things’ should be excluded in order to comply with the meaing of national secret. And conventional wisdom and current social atmosphere of Korea should be reflected during the process of classifying actual secrets. Furthermore, it needs to have an objective and concrete analysis on each field. Nevertheless, if the judgment on confidentiality is still ambiguous and unclear, then the principle of in dubio pro reo should be applied and favorable to the defendant.
    Keyword:Criminal Law, National Legal Interests, National Secret, Principle of Legality, Military Secret
  • The problem of the school violence of the youth is not merely the deviation of the individual, but the social problem that our community must solve as a top priority. In recent media reports on juvenile school violence, newspapers and portal sites have spread. People who were angry at the school violence filed a petition to abolish the Juvenile Law on the Cheongwadae homepage, and more than 270,000 people have complained about it, resulting in a huge societal aftereffect. It does not mean that they do not understand community members' sympathy. Although they trust the strong national obedience as a measure against school violence, they do not have a great effect. At the end of 2011, Daegu's suicide incident became publicized, causing a great social shock. The government announced that it would eradicate school violence in 2012, and announced the "Comprehensive Measures for the Elimination of School Violence". After the announcement of the measure, it was reported that the violence was reduced by simple numerical figures. However, after several years, we can not help asking whether the measure emphasizing unilateralism is effective. This shows the limitations of not being able to create a healthy community and not fundamentally reducing school violence and juvenile delinquency as a powerful imperative of the current judicial system in which the punishment of the perpetrator punishment = problem solving is widespread in our society. Therefore, in this study, how is the direction of school violence and genuine restorative justice defined in the current situation, where the national criminal justice system paradigm is shifting from the victim-centered traditional criminal justice system to the offender-centered criminal justice system? The current Criminal Justice Review examines the meaning and effectiveness of the traditional national criminal right to combat and complement the ideology of restorative justice as a preventive measure against serious school violence. It is necessary to plan ways to bring about substantial change.
    Keyword:School Violence, Prevention of School Violence, Restorative Justice, Severe Punishment, Perpetrator
  • With the spread of smartphones and tablet PCs beyond the users of personal PCs connecting the Internet, cyber space has become an existential stage that directly affects our life rather than a simple virtual space. The first level of SNS ripple effect is that it functions as a media medium for marketing, publicity, and entertainment due to the network function that makes it easier to build so-called connections. On the other hand, the other attribute of SNS is exposed to the negative aspect which is used as a means of various crimes. Among the char-acteristics of SNS, since the location information service is accompanied and the personal privacy information is exchanged, exposure of location information and personal information eventually leads to privacy violation it is likely to lead to other crimes. In terms of criminal policy, privacy is important and constitutionally recognized rights, and personal infor-mation infringement is also closely related, so personal information and privacy violation are not related to crime. Therefore, it is necessary to pay attention to the crime prevention aspect from the viewpoint of the users, and it is considered that the responsibility should not be overlooked from the viewpoint of the business operator. In other words, if you understand the nature of SNS and understand the awareness and danger possibility, you can be protected from SNS crime damage. Therefore, it is important to pay attention to how well SNS users understand the attributes of SNS. Considering that cybercrime using SNS is mainly based on weakness of personal information protection, we use social networking service(SNS) so that personal information management can be carried out under self responsibility by educating and educating SNS users. It is necessary to establish clear guide-lines on the limitations on the use of location information and surrounding information as the type and scope of personal information required for SNS subscription, and as linkage information.
    Keyword:SNS, Personal Information, Location Based SNS, Blog-Based SNS, Networking SNS
  • The general tendency of contemporary Crime in the 21st century is transnational, intelligent, difficult to prove, related to much illicit money and collaborative among criminals especially in North East Asia. It is difficult to recover criminal assets in North East Asia not only because of the lack of the necessity recognition for the criminal asset recovery but also the limitation of the governance for the efficient mutual legal assistance in criminal matters including the incompletion of the legislation for the Asset Recovery. Non-Conviction Based Confiscation is also based on the completion of the legislation and the willingness for the substantial collaboration among the judicial organizations in Northeast Asian countries.
    Keyword:Asset Recovery, Confiscation, Victim Protection, Mutual Legal Assistance, Criminal Proceeds
  • Cyber terrorism has emerged internationally since the mid-1990s when networking began to take place. However, in most cases, the damage was localized by hacking the network of related organiza-tions and hacking for economic gain in order to inform individual or organization claims. However, as we look at the year 2015, the s pread of computer networks and the dependence of the infrastructure on this network are not comparable to those of the 1990s. The fact that major broadcasting companies and financial institutions are temporarily paralyzed by the cyber terrorism incident on March 20, 2013 and June 25, 2013, revealing the vulnerability of the social infrastructure, reveals the danger of cyber terrorism It is imperative to prepare countermeasures. In particular, major social infrastructures and services of the modern countries including Korea are gradually being connected and controlled by ICT technology. In case of facility and service failure caused by unauthorized access to such facilities, the impact on the normal operation of other core facilities may become very large. In particular, there is a serious problem in that the infringement of the network connecting the national infrastructure such as communication, finance, water supply, power, etc. and controlling each information system may cause obstacles in the whole country rather than simple cyber infringement. In this way, cyber terrorism cases against the state infrastructure have been actualized. In addition to the cases described above, there are many cases of cyber terrorism in Korea. In recent years, cyber terrorism targeting Korea has tended to occur in order to impose damage to national infrastructure such as GPS, telecommunications, broadcasting, and financial facilities. This is because the risk of individual criminal activity to threats to national security. In the ICT era, cyber terrorism is a new threat to national security and it is a new type of risk source that is discussed in modern risk society. Therefore, there is a need to cope with criminal policy and legislation.
    Keyword:Cyber Terror, Terror, National Security, Change of National Security Situation, Due Process
  • In Korea, suicide was caused by school violence and it became a social problem. The school violence prevention law was enacted to allow students to take action on school violence victims, protect students from harm, and resolve disputes between them. The existing system of school violence was able to regulate school violence, but the Act on the Prevention of School Violence was enacted to more effectively protect the victims and prevent school violence. According to the Act on the Prevention of School Violence, each school has its own organization called the Autonomy Committee. Self-governing committees usually conduct school violence prevention activities. In the event of school violence, students should take a neutral standpoint and take initiative measures, protect victims, and make dispute resolution. This is an institution to resolve school violence on its own within the school. However, school violence is a criminal offense, and there is controversy over handling school violence within the school. Especially, there is controversy about the scope of the school violence prevention law. In this paper, the main contents of the school violence prevention law are reviewed and the scope of the school violence prevention law is clarified as follows. First, it is the coverage area. According to the School Violence Prevention Act, school violence is violence in and out of school. In other words, it is because school violence can occur not only in the educational activities outside the school but also on the way to and from school. Therefore, it is necessary to interpret it widely based on the relation with the school. Second, it is human scope. The School Violence Prevention Act stipulates that school violence is a "student-directed" act. If the victim is a student, the law must apply regardless of whether the perpetrator is a student or not. Third, it is the action to be applied. In the school violence prevention law, school violence uses the notion of criminal law, such as injury and assault, and it should be interpreted independently in judging it, but it should be interpreted same as the concept of criminal law to prevent unified interpretation and confusion.
    Keyword:School Violence, School Violence Prevention Law, Protection Measure, Self-Government Committee, Leading Measure
  • The labor union means a group of workers organized by workers for the purpose of maintaining and improving working conditions and improving their economic and social status. In modern Western countries, the importance of police union organized in the early 20th century is increasing within the police organization and the it also plays a role as a law-protected labor organization. In Korea, however, the government did not approve of the police union. This study examined the three basic labor rights and significance of the government employees’ union and the trends of police unions in Germany, the United States, and Japan according to the World Labor Organization standards, and then compared the basic labor rights of Korea police union with them. As a result, the police officer’s basic labor rights of Korea police union are not authorized. Therefore, the establishment of Korea police union to obtain basic labor rights of Korea police officers as an employee should be actively considered, also the extent, scope and procedures of allowing Korea police union should be smoothly implemented within the legal system.
    Keyword:Labor Criminal Law, Labor Union, Police Officer, Labor Rights, Public Peculiarity
  • In this paper, we have examined the issues to be considered for the protection of industrial security technology from a criminal law perspective. Infringement of industrial security technology is a field that can threaten the existence and security of the state as well as impeding national competitiveness, and it is common to discuss it in the national security area. Furthermore, the threat of national security has diversified, and the effective control over industrial security technology is getting more difficult. Therefore, this study distinguishes two important areas to be considered for protection of industrial security technology. First of all, although industrial security technology belongs to the field of protection, it is confirmed that un-conditional protection is moving toward a hyperconnected society, and that there is no reality at the moment. Secondly, it pointed out that criminal punishment is at the forefront of protection of industrial security technology, especially that the creation of new crime should be judiciously cautious. In the concrete criminal procedure, it prevents prevention of intentional leakage of sensitive industrial security technology. In order to proactively protect the industrial security technology, it is necessary to consider how to institutionalize information sharing among the related organizations involved in the protection of industrial security technology. In addition, the protection of industrial security technology can be limited only by the efforts of the public sector. Therefore, we examined the possibility of utilizing the private investigator. Finally, we assume that the industrial security technology is traded in the dark net, which is newly emerging as a crime market.
    Keyword:Justice & Law, Industrial Security, Balance of Protection and Utilization, Dark Net, Symbolic Criminal Law
  • The fastest growing form of gambling in the world is Internet gambling. Internet gambling creates many new potential problem in modern society. Gambling can be a very addictive behavior, for some it becomes pathological. And the liquid and ever-changing environment of the Internet provides a perfect cloak for criminal activity. One of the primary concern is that the encryption and anonymity of accounts in off-shore gambling sites provides a conduit through which criminals can launder money. Also, the Internet is readily accessible by young people. As such, teenagers also have access to the multitude of new gambling websites. There are good arguments for both prohibition and legalization of Internet gambling. In reality, it is difficult to crack down or ban Internet gambling sites, and laws or policies that reverse people's behavior practices are ineffective. And therefore, it is also argued that it is necessary to bring into the legal regulatory areas to promote economic benefits such as securing the national tax revenue and to use it in the prevention and treatment of gambling addiction. But the argument that it will create new net revenues by legalizing Internet gambling is simply red-herring taxation that misleads the government, because the monies converted from a taxable consumer economy into vacuous gambling account will significantly diminish overall tax revenues. Internet gambling should not be allowed because the sybaritic monetary philosophy will eventually infect, destabilize and destroy the global economy and financial system.
    Keyword:Internet Gambling, Gambling Addiction, Problem Gambling, Legalization, Prohibition