재량적 위법수집증거배제의 필요성, 근거 및 기준

Abstract

The Korean Supreme Court has consistently declined to exclude the physical evidence obtained by illegal search-and-seizure, and has provided the following rationale, "[e]ven though the procedure of seizure was illegal, the value as evidence does not change because the procedure did not affect the quality and shape of the substance itself." The Court clearly rejected the U.S. Fourth Amendment Mapp exclusionary rule. Neither the Constitution nor the Criminal Procedure Code has a provision regarding the exclusion of illegally obtained physical evidence. Without an exclusionary rule, however, the constitutional warrant requirement would remain virtually unenforced. There are no other effective remedies for illegal police misconduct in Korea. Criminal or civil liability and internal discipline have not shown promise to deter the police misconduct in Korea. In this context, most of the Korean legal scholars share that the Korean Supreme Court should take the Mapp decision more seriously. This Article argues the exclusionary rule, if adopted by the Supreme Court or legislated by the National Congress, should be discretionary, not mandatory, for the following reasons: There exists difference between the exclusionary rule and the confession rule in that the latter is stipulated in the Article 12 (7) of the Constitution and the Article 309 of the Criminal Procedure Code, demanding mandatory exclusion of illegally obtained confession: Although the right to privacy protected by the exclusionary rule is certainly important constitutional right, it is inferior to the rights to silence and counsel protected by the confession rule: Automatic exclusion of the illegally obtained evidence because of some minor illegality without malice or recklessness may damage respect for the law as much as over-ready reception of the evidence. After reviewing academic theories and judicial decisions in foreign countries, this Article suggests two tests to be considered for the discretionary exclusion: (i) whether the law was deliberately or recklessly violated or whether the illegality was unintended or accidental; (ii) whether the privacy of the individual was seriously violated or the violation was technical. Although the cogency of the illegally obtained evidence is a factor to decide if the evidence is excluded, it should not overshadow the two tests above. Finally, this Article examines the "good faith" exception made by the U.S. Leon decision. Agreeing that the exclusionary rule is inapplicable to evidence obtained by an officer acting in reasonable reliance on a facially valid warrant issued by a judge even if that warrant is ultimately found to be invalid, this Article rejects to extend the exception to warrantless search-and-seizure.