위법수집증거와 독수과실의 원칙의 제한

Abstract

There is well-written regulation about denying admissibility of evidence on illegally acquired evidence in the Criminal Procedure Act § 308-2. It becomes the issue whether or not to accept the admissibility of evidence that derived from illegally obtained evidence. In the past, admissibility of evidence was denied on the testimonial evidence which was derived from illegally obtained evidence in accordance with The Doctrine of Poisonous Tree whereas it was accepted on the non-testimonial evidence because the form of evidence will not be changed. However, upon newly established §308-2, point of view was raised that admissibility of evidence of both evidences illegally collected evidence and secondary evidence which was derived from illegally collected evidence were denied. According to so-called the Doctrine of Poisonous Tree, when both illegally acquired evidence and secondary evidence are denied, then finding truth that is an ultimate goal of Criminal Procedure Act is still far-off. Therefore, there should be proper limitations and to establish the proper limitations, certain criteria, such as plinciple of dilution and interruption, plinciple of self detection and evidence ban are suggested. For majority of opinions in USA and Germany, conclusively, even there is violation of law in the process of collecting evidence, the admissibility of evidence should not be denied. Moreover, it should be considered that if there were violation of essential rights of suspect/defendant while there was violation of law of collecting evidence, if there was probability of acquiring evidence without breaking the law, and if there was violation of the core of personal criteria even without infringement of law on collecting evidence.