違法한 押收搜索에 의하여 蒐集된 證據의 排除에 관한 比較法的考察

Abstract

In Korea, there was no exclusionary rule regarding illegally obtained physical evidence. Without the exclusionary rule until recently, we could not prevent a police officer from conducting an unreasonable search and seizure. The exclusionary rule is the primary means of deterring these violations and the judicially invented means for the judicial integrity because there is no other real remedy and a disciplinary action is not really effective than expected and The Korean Supreme Court has not excluded physical evidence obtained by illegal searches and seizures while suppressing evidence obtained by illegal arrest, detention and police interrogation. But there is no distinct difference between the physical evidence obtained by illegal search and statement obtained by illegal investigation. Fortunately, as a result of the reform of the Korean Criminal Procedure Code(therefore “KCPC”) in 2007, Korea now has a statute about the exclusionary rule that includes both illegally obtained confessions and physical evidence. With this new exclusionary rule, we will now have to consider the “fruit of the poisonous tree doctrine,” and “Exception Theories,” but there was no guidance as to which factors should be considered in assessing whether the initial poison should taint the secondary evidence in Korea. In this paper, I touch on the exclusionary rule in the U.S. in comparison to that of Korea. I also briefly review that of other countries and then review Korea’s Supreme Court decision to understand the prospective and trends for Korean criminal procedure reform. In conclusion, after comparing several countries' systems, We need make a balance test between truth finding function and privacy protection regarding the admissibility of illegally obtained physical evidence through a search and seizure.