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"자백배제법칙"의 근거와 효과 그리고 "임의성" 입증 : The Rationale and Effect of the Confession Rule
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- Authors
- Issue Date
- 2002
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.43 No.1, pp. 375-393
- Keywords
- 자백이 배제되는 사유 ; 김근태씨 고문사건 ; 박종철씨 고문치사 ; 권인숙씨 성고문 사건 ; confession est regina probationum ; 허위배제설
- 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...
- ISSN
- 1598-222X
- Language
- Korean
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