In the Supreme Court en banc decision 2016Do348 decided November 18, 2021, the concept of “actual person subject of seizure” was first used in the seizure and search of electronic information through voluntary submission. Since then, the requirements for a suspect to become an “actual person subject of seizure” with the participation right in cases where a third party voluntarily submits an electronic information storage medium owned by the suspect have been specified. In this case (Supreme Court Decision 2023Do3623, decided December 24, 2024), in which “a third party (the victim) copied electronic information from an electronic information storage medium owned by the suspect onto a storage medium of his/her own, stored it, and then voluntarily submitted the storage medium to the investigative agency,” specified the scope and requirements of an “actual person subject of seizure” by ruling where a third party voluntarily submitted a storage medium owned by him/herself, the electronic information management entity (the suspect) is not an actual person subject of seizure, unlike the lower court, which ruled that the suspect was still a data subject identifiable by the electronic information. However, despite the numerous precedents regarding actual person subject of seizure, including this case, it is still difficult to say that clear standards have been established regarding the meaning and scope of actual person subject of seizure. In this commentary, I would like to argue: ⓐ In relation to the participation right in the search and seizure procedure and who has the right to participate, especially whether the suspect is a participant, it is clear that the ‘suspect’ is a participant in the search and seizure under a warrant issued by a judge, whether by interpretation of the legal text, by interpretation based on various constitutional principles such as the principle of the adversary system in the investigation and the suspect’s right to Right to Assistance of Counse, or by interpretation based on the original intent of the legislation. ⓑ The ‘ctual person subject of seizure’ in the Supreme Court’s case law should be viewed as a concept that is applied only to ‘when a third party voluntarily submits an electronic information storage medium owned by a suspect’ because there is no explicit provision on the right to participate in ‘seizure and search by voluntary submission’, and it should not be expanded to be applied to seizure and search by warrant. ⓒ The Supreme Court's precedent leaves room for excluding 'suspects' from the participants through the concept of 'actual person subject of seizure', which should be seen as a result of taking into account the characteristics of electronic information such as the vastness of information, as well as the need for timely, on-site, and confidential investigative procedures. ⓓ Lastly, even if we follow the concept and requirements of the ‘actual person subject of seizure’, this case has an overly formal judgment on the ownership of the voluntarily submitted electronic information storage medium, resulting in the exclusion of the participation right of the ‘suspect with a substantial interest’ in the specific case. The Supreme Court’s creation of the concept of “actual person subject of seizure” in order to harmonize the interpretation with another legal interest of finding substantial truth through investigation while recognizing the participation right in voluntary submission despite the absence of explicit provisions is acceptable in terms of its purpose, but it cannot be interpreted that the suspect’s participation right in the seizure and search procedure by warrant is also restricted for that reason. In addition, this case can be criticized for excessively restricting the suspect’s participation right.
Taewon Choi (Mon,) studied this question.