공무상 비밀에 대한압수·수색의 법적 한계와 통제 방안

초록

Companies and state institutions carry out numerous projects linked to diplomacy and national security, such as nuclear energy and the defense industry. Information generated during these collaborative business processes or within exchanged documents often contains matters of critical national interest concerning military, foreign, and inter-Korean affairs. For instance, domestic private corporations are the primary participants in the nuclear-powered submarine construction projects currently under discussion between the South Korean and United States governments. This raises a crucial legal question: if identical materials are co-retained by both a state agency and a private corporation, does the corporation have any legal recourse to refuse the execution of a search and seizure warrant executed by investigative authorities? Articles 110 and 111 of the Criminal Procedure Act prescribe circumstances under which state agencies may withhold consent for the search and seizure of military and official secrets. However, these provisions have long stood at the center of debates over amendment or abolition, drawing severe criticism for being abused by high-ranking public officials as a pretext to evade criminal investigations. Nevertheless, contemporary global dynamics—characterized by the expansion of international trade and escalating geopolitical conflicts—demonstrate that the legal protection of military and official secrets remains indispensable. If core confidential data directly linked to national security is exposed without filter during investigations or judicial proceedings, a critical security vacuum could ensue. As evidenced by the recent codification of the Attorney-Client Privilege (ACP) in the Attorney-at-Law Act, modern criminal justice increasingly shifts toward prioritizing the protection of legal interests surrounding confidentiality, striking a balance with the discovery of substantive truth. This study discussed the necessity of retaining provisions for protecting official secrets from a historical perspective and analyzed past cases of abuse to facilitate institutional improvements in the legal framework. To regulate such abuse, this paper identified judicial review standards derived from the precedents of the Supreme Court and the Constitutional Court of Korea, emphasizing the necessity of a constitutional law-based approach throughout the review process. Finally, drawing upon comparative legislation and case studies from other jurisdictions, this study suggested proposed amendments to Articles 110 and 111 of the Criminal Procedure Act.

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