진술거부권불고지와 증거의 증거능력 - 대법원 2009. 3. 12. 선고 2008도11437 판결 -

Abstract

‘Right of statement veto’ is the right which can deny the unfavorable or advantageous statement of the accused in the process of the investigation or the judgement. It is based on the regulation, so-called ‘Privilege against self incrimination’ which is due to the article 12 of Constitution. It is “All the people must not be tortured, not be compelled to make the criminally unfavorable statements”. The reason why the Constitution assures right of statement veto as a basic right of the people is because human right of the accused is more important than the national interests, like the social justice or the discovery of substantive truth. The aim of article 12 is to come true the principle of the fair judgement and the principle of the human dignity, as the prohibition of the force of inhumane confession and the promotion of ‘weapon equality’. It is very important factor which should be guaranteed in the legal process to inform the accused of his legal right and duty. Especially, the right of statement veto is the essential method of defense which is guaranteed in Constitution as a basic human right. So, the importance of the notification of this right in advance cannot be overemphasized. It is necessary that we should interpret the situation, which needs the notification of right of statement veto, widely. But, it is desirable to except the extremely voluntary statements in the objects of the notification. The basis on the denial of the admissibility of the evidence in the cases which gain the statements without notification of right of statement veto should be the ‘Exclusionary rule’, as it is not desirable to deny the voluntariness of the statements which are gained through simply undue process. This precedent accepted the evdence-ability of the testimony made by the witness and the secondary confession of the accused in due process. This conclusion was decided separately, according to the basis on the severance of the relation between direct statements and secondary proof. Therefore, the secondary confession of the accused and the testimony of the witness have the qualification of the direct proof themselves which was gained in due process. So this precedent is beyond the collision problem between procedual-legitimacy and descovery of the genuine truth.