위법수집증거배제법칙의 도입과 피해자의 지위

Abstract

The exclusionary rule is a judge-made doctrine that prohibits introduction of evidence obtained in violation of a defendant's Fourth, Fifth, and Sixth Amendment to the US Constitution. The Fourth Amendment to the US Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The exclusionary rule enforces this constitutional provision by excluding from the trial of a case any evidence that has been obtained by the government through means which violate the Fourth Amendment. The exclusionary rule operates as a bar to the use of evidence obtained as a result of an illegal search or seizure. The US courts have been reluctant to impose exclusion as a judicial remedy for a violation of a federal statute or regulation, or a Federal Rules of Criminal Procedure. The revised Code of Korean Criminal Procedure introduced the exclusionary rule of the US to the criminal justice system where Korean Supreme Court has been refusing to apply the rule to the material evidence which is obtained by the illegal search or seizure of the government. It provides that the evidence which is obtained by violating due process of law shall not be admitted. The admission of the evidence, in Korea, depends on whether the government followed the due process of law while the evidence that has been secured by violation of the constitutional right shall be excluded in US. In addition, the Korean Supreme Court recently ruled that, in principle, the exclusionary rule should be applied to the material evidence if the evidence was obtained by the search or seizure process which did not follow the Korean Constitutional Law and Criminal Procedure Law. After all, there is a chance that the slight violation of the Criminal Procedure Code by investigative agents would result in the violation of due process of law and exclusion in Korean courts under the Korean Supreme Court's ruling. I disagree with this decision of Korean Supreme Court because this ruling did not deeply considered the one of the goals in criminal procedure - the discovery of the truth. The standard of the exclusionary rule must be whether the illegality of government's violation is substantial or serious considering the spirit of due process of law. It was the minor opinion of that Supreme Court's ruling. The exclusionary rule applies only to governmental action, not to private action. However, the evidence which is illegally obtained by the private person may be denied admission to the court through balancing test where the court decides the defendant's privacy is more important than public interest including the victim's damage.