자백배제법칙의 근거와 임의성의 입증

Abstract

Article 12 (7) of the Korean Constitution and Article 309 of the Korean Criminal Procedure Code provide for the exclusion of involuntary confessions made under torture, battery, threat, deceit or after prolonged custody as well as confessions whose voluntariness is doubtful. There has been a long debate on the rationales and scope of the confession rule. This article critically reviews the 'reliability and voluntariness tests'. Contrary to the explicit wording of the Article 12 (7) of the Constitution and Article 309 of the Criminal Procedure Code, the 'reliability test' excludes confession based on its reliability, not on its voluntariness. Then, confession is admissible when it is reliable even if obtained involuntarily. According to the 'reliability test' it is almost impossible to deter police illegal misconducts. The 'voluntariness test' has different problems although it excludes reliable confession if it is obtained involuntarily. It does not provide objective standards for exclusion because the voluntariness of confession is decided considering the totality of the circumstances. It does not have a strong bite because the causation between police misconduct and congession is required to exclude the confession. This article argues that illegally obtained confession should be automatically excluded even though it is either reliable or voluntary in order to fulfill the request of the Constitution and deter police misconducts.