위법수집증거배제법칙 재론

Abstract

In 2007 the National Assembly revised the Criminal Procedure Code to stipulate Article 308-2 for the exclusion of illegally obtained evidence, which is effective as of January 1, 2008. It reads: "The evidence obtained not by due process of law shall be excluded." On November 15, 2008 the Korean Supreme Court made a landmark decision to exclude illegally obtained physical evidence. Before the decision, the Court had consistently declined to exclude the physical evidence obtained by illegal search-and-seizure, whereas it has excluded involuntary confessions made under torture, battery, threat, deceit or after prolonged custody and confessions obtained in violation of the defendant's right to remain silent or right to counsel although they are disclosed voluntary. The revision of the Criminal Procedure Code and the Supreme Court's new decision show both the National Assembly and the Supreme Court recognize there are no other effective remedies for illegal police misconduct in search-and-seizure. First, this paper reviews the debate made in the Presidential Committee on the Judicial Reform: how to stipulate the exclusionary rule. Second, it examines the status and extent of Article 308-2 in the Criminal Procedure Code. It will argue, Article 308-2 is a general provision for other exclusionary rules such as Article 309 of the Code for confession rule and Article 4 of the Communication Privacy Protection Act to exclude the communication obtained by illegal wiretapping. Third, this paper analyzes the 2007 Supreme Court decision, which adopts discretionary rule, not mandatory rule. It finally highlights the difference between the majority opinion and the dissenting opinion regarding the standard of exclusion.