S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) Journal of Korean Law Journal of Korean Law Volume 13 Number 1/2 (2013/2014)
The Exclusion of Illegally Obtained Confessions, Electronic Communications and Physical Evidences in Korea
- Cho, Kuk
- Issue Date
- BK 21 law
- Journal of Korean Law, Vol.13 No.2, pp. 175-217
- exclusionary rule; confession; interrogation; wiretapping; search-and-seizure; Miranda; Massiah; Mapp
- The 1987 Constitution of Korea explicitly stipulates the principle of due process in criminal procedures and provides very detailed Bill of Rights provisions regarding criminal procedural rights. This “constitutionalization of criminal procedure” has brought significant changes in the theory and practice of the Korean criminal procedure. Exclusionary rules are in the middle of this “revolution”. The Korean judiciary and legislature that experienced the dark age of procedural rights under the long authoritarian rule chose to adopt the exclusionary rules as a useful tool to deter police misconduct. Firstly, this paper starts by reviewing the terrible situation under the authoritarian regime of Korea and the legal change after democratization. Secondly, focusing on the landmark judicial decisions and legislations including the Criminal Procedure Code and the Communication Privacy Protection Act, it examines three categories of exclusions: the exclusion of incriminating statements obtained in the process of illegal arrest or interrogation, communications by illegal wiretapping and physical evidences obtained by illegal search-and-seizure. Finally, it analyzes the remaining issues regarding the aforementioned exclusionary rules.