Korea is now considered as one of the leading countries in internet use and broadband internet access. The cybercrime can be defined as any criminal activity committed in cyber space, which is based on the information communication infrastructure. As information communication technology develops rapidly, and as our reliance on cyber space increases more and more every day, the loss caused by the cybercrime also becomes more serious. We have already experienced the potential consequence of the cybercrime through Jan. 25 Internet Crisis in 2003, several cases of hacking or DDoS attack on important websites such as the Blue House, the National Assembly, the National Defense and Science Institute, the major press companies, the major portal websites, and banking system.
Due to the characteristics of cyber space, the cybercrime possesses the characteristics of anonymity, simultaneousness, no time and space limits, invisibility, expertism, and no national boundaries. Those characteristics of the cybercrime pose many difficulties for investigative and criminal justice process.
The legal countermeasure in criminal justice system against the cybercrime can be divided into two categories. The first category is the substantial laws which include the appropriate provisions of punishment against newly emerged cybercrimes as the information communication technology develops. The second is the provisions of procedure laws which provide appropriate methods to keep up with technological aspects of the cybercrime, so as to ensure the availability of the substantial laws.
Examining the provisions of Korean current criminal justice concerning the cybercrime, the criminal procedure laws seem to be inconsistent and deficient to confront the cybercrime effectively. And the current criminal procedure laws have not been adapted to the rapid development of information communication technology and its features. This study focuses on the criminal procedure against the cybercrime since many studies on substantial laws have been preceded.
To examine these issues, this study explores the concept of the cybercrime, the classification, the characteristics, the statistics of incidences, and the severe cases.
Secondly, this study contemplates provisions of criminal procedure laws of Korea against the cybercrime, including the Communications Privacy Protection Act, the Criminal Procedure Law, the Act on Promotion of Information and Communications Network Utilization and Information Protection, and the Act on International Cooperation of Criminal Justice.
Subsequently, this study examines the system of advanced countries like US and European Union to compare the criminal procedure of Korea with that of US and EU, finding out the problems of our system and coming up with the improvements and countermeasures. The US laws regarding the cybercrime have been revised continuously reflecting the structure of information communication technology, and thus get legitimate procedures to collect all sorts of evidences in cyber space. The European Convention on Cybercrime is the first international treaty on crimes committed via the Internet and other computer networks, containing a series of procedures such as the interception and the search and seizure of data which is stored in computer or network system.
In chapter 4, this study intensively diagnoses the problems of Korean criminal procedure against the cybercrime, analyzing the current provisions of respective criminal procedure laws.
In chapter 5, this study suggests the legislative improvements and countermeasures to respond the cybercrime more effectively, including amendment proposal of inconsistent or deficient criminal procedure provisions. Although this study profoundly examines practical problems of our legal system and presents effective measures, they are premised on balancing the privacy protection and public interest in accordance with the constitutional principle.
In conclusion, with regard to the Communications Privacy Protection Act, the definition of electronic telecommunication needs to be modified to get rid of inconsistency, which can be wiretapped under the control of the jurisdiction, and the enumerated crimes in which the contents of the telecommunication could be eavesdropped should include cybercrimes like hacking, attacking cyber space, and the infringement of secrets in telecommunications and conversations. As to the Criminal Procedure Law, the provisions of search and seizure should be amended to allow the investigation authorities to collect digital evidence like stored data. Concerning the Act on Promotion of Information and Communications Network Utilization and Information Protection, the obligation of gathering evidence at scene of the cybercrime should be added to the emergency response provision, and the investigation regulated by the same law must be under the control of jurisdiction through relating the investigation with investigation authorities. To enhance international cooperation against the cybercrime, it is necessary for Korea to accede to the Convention on Cybercrime as soon as possible.