재량적 위법수집증거배제의 필요성, 근거 및 기준

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...