"자백배제법칙"의 근거와 효과 그리고 "임의성" 입증

Abstract

Article 12 (7) of the Korean Constitution and Article 309 of the Korean

Criminal Procedure Code provide for the exclusion of involuntary confessions

made under torture, battery, threat, deceit or after prolonged custody as well

as confessions whose voluntariness is doubtful. There has been a long

debate on the rationales and scope of the confession rule.

First, this Article critically reviews the reliability and voluntariness tests.

Contrary to the explicit wording of the Article 12 (7) of the Constitution and

Article 309 of the Criminal Procedure Code, the reliability test excludes

confession based on its reliability, not on its voluntariness. Then, confession is

admissible when it is reliable even if obtained involuntarily. According to the

reliability test, it is almost impossible to deter police illegal misconducts.

The voluntariness test has different problems although it excludes reliable

confession if it is obtained involuntarily. It does not provide objective

standards for exclusion because the voluntariness of confession is decided

considering the totality of the circumstances. It does not have a strong bite

because the causation between police misconduct and confession is required to

exclude the confession. This Article argues that illegally obtained confession

should be automatically excluded even though it is either reliable or voluntary

in order to fulfill the request of the Constitution and deter police misconducts.

Second, this Article critically examines the Korean Supreme Court's decisions.

The Court has not provided the uniformed standard for the confession rule. It

has made decisions of excluding involuntary confessions made under torture,

battery, threat, deceit or after prolonged custody. Recently the Court also made...