헌법적 형사소송론 관점에서의 진술거부권의 함의

Abstract

State institutions are neither moral beings nor subjects that can enforce truth obligations on human individuals. Even if an individual has a moral obligation to tell the truth as a human being, it does not give the authority to force state agencies to make statements. The scope of compulsion of state institutions is not the area of active obligations, but only passive obligations can be enforced. If so, the state cannot impose an active obligation to make a statement as to whether to make a statement, and the compulsion to make a statement will only lead to the reduction of human means for the exercise of national punishment rights in criminal procedures and the instrument of information collection. Also, the main purpose of the interrogation procedure is not to discover the truth. The discovery of truth is only the state's duty through the collection of evidence, and as part of criminal proceedings, examination or interrogation should be understood as giving the parties an opportunity to make arguments that benefit them. Therefore, the person who is a party has the right not only to make claims that are beneficial to himself, but also to remain silent on claims that are disadvantageous to him. The part corresponding to human's unique attributes and human nature is the most essential composition as a human being and the most vulnerable area. The reason for pursuing constitutional criminal procedure theory, stipulating the prohibition of coercion of criminally unfavorable statements, and the prohibition of infringement of the essential contents of basic rights means that in any case, the area of human nature must be absolutely respected. In addition, when the right to refuse self-incrimination is expressed in the form of the right to refuse to state, it should be considered that the law cannot limit or enforce it. However, even if such rights are declared as constitutional principles and guaranteed by law, it is clear that if the exercise of the right to refuse to state causes disadvantages to the right holder, the right will be criminalized. Here, starting with the meaning of the constitutional criminal procedure theory, is examined what the right to refuse to state should look like in detail. Specifically this paper is examined what the theory of constitutional criminal proceedings is and studied the relationship between the privilege of self-incrimination from the nemo tenetur principle and the right to refuse to state derived therefrom. It also confirmed how the nemo tenetur principle is reflected in the criminal law and the criminal procedure law. In addition, the concept of the right to silence, the right to remain silent, and the right to say nothing as a practical method of guaranteeing the right to refuse to state, and the properties of the right to refuse to state were examined. It analyzed whether the right to refuse to answer or the right to refuse to answer for questioning or interrogation, and argued that the state agency would lose the right to refuse to testify because it corresponds to the former. It was also confirmed that selective denial of statement and comprehensive or total denial of statement were the contents of the right. In addition, issues such as guaranteeing the accused's right to refuse to state before being booked, the possibility of a witness or witness's refusal to state, the other party to the notification of the right to refuse to state, and so on. However, it was considered that the extent to which part of the body becomes evidence and is subject to warrantism was not related to the right to refuse to state. In a 1964 U.S. Murphy ruling, Justice Goldberg called it reflections man of our fundamental values and most no-obligation, saying that one of the great landmarks in man's strict to make him self-civilized. The right to refuse to state is an essential human right and must be absolutely guaranteed.