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"자백배제법칙"의 근거와 효과 그리고 "임의성" 입증 : The Rationale and Effect of the Confession Rule
DC Field | Value | Language |
---|---|---|
dc.contributor.author | 조국 | - |
dc.date.accessioned | 2009-09-09T23:45:06Z | - |
dc.date.available | 2009-09-09T23:45:06Z | - |
dc.date.issued | 2002 | - |
dc.identifier.citation | 법학, Vol.43 No.1, pp. 375-393 | - |
dc.identifier.issn | 1598-222X | - |
dc.identifier.uri | http://lawi.snu.ac.kr/ | - |
dc.identifier.uri | https://hdl.handle.net/10371/9091 | - |
dc.description.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... | - |
dc.language.iso | ko | - |
dc.publisher | 서울대학교 법학연구소 | - |
dc.subject | 자백이 배제되는 사유 | - |
dc.subject | 김근태씨 고문사건 | - |
dc.subject | 박종철씨 고문치사 | - |
dc.subject | 권인숙씨 성고문 사건 | - |
dc.subject | confession est regina probationum | - |
dc.subject | 허위배제설 | - |
dc.title | "자백배제법칙"의 근거와 효과 그리고 "임의성" 입증 | - |
dc.title.alternative | The Rationale and Effect of the Confession Rule | - |
dc.type | SNU Journal | - |
dc.contributor.AlternativeAuthor | Jo, Gug | - |
dc.citation.journaltitle | 법학 | - |
dc.citation.endpage | 393 | - |
dc.citation.number | 1 | - |
dc.citation.pages | 375-393 | - |
dc.citation.startpage | 375 | - |
dc.citation.volume | 43 | - |
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