2000년대 초기 대법원판례의 동향 - 수사절차와 증거 관련 대법원 판례를 중심으로 -

Abstract

After 2000, the Supreme Court of Korea did not follow just its former rulings in some criminal procedure cases. Rather the Court has chosen to underscore due process in the Korean Constitution and the Criminal Procedure Act and proceed to present more strict standards on usual practices. And in the first decade of the 21st century, the National Assembly, the Court, the Prosecutors' Office, and the academic circles have continually exerted influence over one another. As a result, the Criminal Procedure Act was revised in 2007 and took effect on and after Jan. 1, 2008. In this article, some supreme court cases in the criminal procedure are reviewed. These cases involve the exclusionary rule, the right to counsel, the admissibility of statements, and digital evidence, which are related to the revise of the Act or the change of practical routines. The revised Act introduced the exclusionary rule to the criminal justice system. The Court refused to apply the rule to the illegally obtained physical evidence. But it changed the former rulings in Supreme Court 2007. 11. 15. 2007do3061 and held that, in principle, the exclusionary rule and the fruit of Poisonous Tree doctrine should be applied to physical evidence if the evidence was obtained by the search or seizure which violated the process of the Constitution and Criminal Procedure Act. In Supreme Court 2011. 5. 26. 2009mo1190, the Court affirmed the courts' practice which made a limitation on the executive way of search and seizure warrant by the additional notes. And that ruling led the newly establishment of the article 106 ③ of the revised Act. In November 2003, the Supreme Court of Korea held that a suspect in custody had the right to counsel during interrogation. And in September 2004, the Constitutional Court of Korea determined to confer the right to counsel on a suspect without custody. After these decisions,the Criminal Procedure Act had an explicit provision for the right in 2007. On the other hand, the Court had maintained its rulings that if the formal authenticity of the statements by a suspect in the protocol of prosecutor is affirmed, the substantial authenticity of the statements was presumed and might be admissible. But the Court changed its former rulings in Supreme Court en banc 2004. 12. 16. 2002do537 and held that the substantial authenticity may also be affirmed only by an admission of the author. And in case of digital evidence, the Court has told that digital evidence may be admissible only if it falls under the hearsay exceptions where it is testimonial.