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재량적 위법수집증거배제의 필요성, 근거 및 기준 : Rationales and Tests for Discretionary Exclusion of Illegally Obtained Evidence
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- Authors
- Issue Date
- 2004
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.45 No.2, pp. 43-66
- Keywords
- 위법수집자백 ; 증거사용금지 ; 접견교통권의 침해 ; 불법한 긴급체포 ; 수사기관의 불법행위
- Abstract
- The Korean Supreme Court has consistently declined to exclude the physical
evidence obtained by illegal search-and-seizure, and has provided the following
rationale, "[e]ven though the procedure of seizure was illegal, the value as
evidence does not change because the procedure did not affect the quality and
shape of the substance itself." The Court clearly rejected the U.S. Fourth
Amendment Mapp exclusionary rule.
Neither the Constitution nor the Criminal Procedure Code has a provision
regarding the exclusion of illegally obtained physical evidence. Without an
exclusionary rule, however, the constitutional warrant requirement would remain
virtually unenforced. There are no other effective remedies for illegal police
misconduct in Korea. Criminal or civil liability and internal discipline have not
shown promise to deter the police misconduct in Korea. In this context, most of
the Korean legal scholars share that the Korean Supreme Court should take the
Mapp decision more seriously.
This Article argues the exclusionary rule, if adopted by the Supreme Court or
legislated by the National Congress, should be discretionary, not mandatory, for
the following reasons: There exists difference between the exclusionary rule and
the confession rule in that the latter is stipulated in the Article 12 (7) of the
Constitution and the Article 309 of the Criminal Procedure Code, demanding
mandatory exclusion of illegally obtained confession: Although the right to
privacy protected by the exclusionary rule is certainly important constitutional
right, it is inferior to the rights to silence and counsel protected by the...
- ISSN
- 1598-222X
- Language
- Korean
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