위법수집증거배제법칙의 적용범위에 관한 연구

Abstract

Scientific development and mechanical technology of contemporary society has brought much change in the Criminal Evidence Law along with our daily living. Thus, criminal investigation needs effective investigational methods and as science develops, efficient ways to collect evidences that was impossible with existing investigational methods have been developed. In particular, as plans of crimes that are progressed in secret can be found and secured as their evidences, effective legal execution becomes possible based on the evidences. However, such legal execution may cause serious infringement to basic rights such as the personal right or the right to maintain privacy. Therefore, public interest of crime prevention and private interest of privacy protection need comparative consideration as opposite interests. In criminal investigation of democratic countries that consider guaranty of basic rights as a supreme value, human rights of innocent people as well as suspects that may be influenced in the investigational procedure should be secured. Our country has the secret information protection law to meet the purpose, but there are no regulations on photographing or videotaping. When the illegally obtained evidence exclusionary rule is applied for this problem, the academic position that negates the admissibility of evidence of illegally collected evidences stands is opposed to the position of affirming the ability. Our Criminal Procedure Law that was revised on July regulates the illegally obtained evidence exclusionary rule in Section 2, Article 308 as follows: “Evidences that are not collected according to legal procedures are not recognized as valid ”. With 2008 implementation of the Criminal Procedure Law that was revised in January 2007 ahead, the Supreme Court finally accepted the illegally obtained evidence exclusionary rule. Therefore, this study speculates a method to find substantive truth of the criminal procedure while accepting more legitimate procedure as a constitutional demand in interpreting the meaning of Section 2, Article 308 of the Criminal Procedure Law. First, this study examines general theories of the illegally obtained evidence exclusionary rule and compares the legislation cases of main foreign countries which accepted this law with ours. It present the judging standard of illegally obtained evidence and divides evidences into those which are illegally obtained by investigational agencies and those collected by private sources to study their scope specifically. As evidence collection both by investigational agencies and private sources is allowed, private collection tends to be gradually increasing. However, even private behaviors that meets the purpose of the Criminal Procedure Law can not be infinitely allowed. For whether the illegally obtained evidence exclusionary rule that was designed to exclude evidences that are illegally obtained can be applied for private sources, its admissibility of evidence should be excluded according to Section 2, Article 308 of the Criminal Procedure Law if the evidences are not obtained legally. However, it should be more specifically considered according to public and private interests as suggested by the Supreme Court. As it is inevitable to use electronic media under the condition that needs more scientific investigation, specific regulations on the input of electronic media such as recording tapes, videotapes and digital photos should be developed in the form of the Criminal Procedure Law or the Special Law. Using the Section 2, Article 308 of the Criminal Procedure Law that has the property of general law as a chance, we have to develop a special law such as the secret information protection law. To realize our criminal private law with a way that violets the principle of legal procedure, focusing finding of substantive truth, it is suggested that the criminal evidence law should be continuously discussed with a start of the Section 2, Article 308 of the Criminal Procedure Law that specifies the illegally obtained evidence exclusionary rule.