타인간의 대화에 대한 비밀녹음의 증거능력 : 예외적 인정을 중심으로

Abstract

In 2022, the victim, who is a child of webtoon artist J, was abused by a special education teacher, and in the case of suing the special education teacher for child abuse, the court recognized the conversation between the victim and the defendant secretly recorded by the victim's mother as evidence. This case has led to a lot of discussion about the secret recording and its admissibility of evidence. In this study, we would like to examine the legal principles of recognizing the admissibility of evidence of exceptional secret recordings. By reviewing the theories and precedents of the exclusive rule, we examine whether the law applies to evidence of illegal collection of private individuals(II). Next, we will review the legal review of ‘private conversations between third parties’ under the Protection of Communications Secrets Act(III), examine cases in which the admissibility of evidence of confidential recording can be recognized as an exception, and examine the validity of the court's application of justification under the Criminal Law in the case of webtoon artist J(IV). In short, confidential recording of conversations between others is prohibited by the Protection of Communications Secret Act, but if parents have serious difficulties in defense and collecting evidence, such as autistic or developmental disabled people who have not developed language ability or physical severe disabilities, there will be room for acknowledging the admissibility of evidence of confidential recording through the victim child.