적법절차를 따르지 아니하고 수집한 압수물의 증거능력 - 대판 2007. 11. 15, 2007도3061() 공직선거법위반 -
Admissibility of the evidence illegally obtained against due process
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Lately, Korean criminal procedure code was revised and the exclusionary rule is written frankly on it(§308-2). Korean Supreme Court enlarged the scope of the application of the exclusionary rule to the degree of German or American judicial system as Korean legal scholars have insisted for long time. Supreme Court ordered the Appellate Court to review whether there was violation of due process in the course of search and seizure as the defendant insists. Korean Supreme Court also declared that according to constitutional specifications of due process, illegally seized evidence is not allowable as evidence in criminal trials. It means that the exclusionary rule can be applicable to the defendant's belongings illegally seized by the police. The Fruit of the Poisoned Tree Doctrine which excludes from introduction at trial any evidence eventually developed as a result of an originally illegal search or seizure was approved by the court. Simultaneously, Supreme Court leaves the space of the exceptional modification of the exclusionary rule based upon the weight of the violation of due process, the reasonal mistakes of the officers, etc. I strongly believe that the exclusionary rule should be observed strictly to deter illegal seizure and search. Also the decision allowing the exception of the rule has to be made scrupulously. I would suggest other criteria are included in them, such as the degree of the crime omitted by defendant and seriousness of the legal interests trespassed by the illegal seizure and search.
Abstract
Lately, Korean criminal procedure code was revised and the exclusionary rule is written frankly on it(§308-2). Korean Supreme Court enlarged the scope of the application of the exclusionary rule to the degree of German or American judicial system as Korean legal scholars have insisted for long time. Supreme Court ordered the Appellate Court to review whether there was violation of due process in the course of search and seizure as the defendant insists. Korean Supreme Court also declared that according to constitutional specifications of due process, illegally seized evidence is not allowable as evidence in criminal trials. It means that the exclusionary rule can be applicable to the defendant's belongings illegally seized by the police. The Fruit of the Poisoned Tree Doctrine which excludes from introduction at trial any evidence eventually developed as a result of an originally illegal search or seizure was approved by the court. Simultaneously, Supreme Court leaves the space of the exceptional modification of the exclusionary rule based upon the weight of the violation of due process, the reasonal mistakes of the officers, etc. I strongly believe that the exclusionary rule should be observed strictly to deter illegal seizure and search. Also the decision allowing the exception of the rule has to be made scrupulously. I would suggest other criteria are included in them, such as the degree of the crime omitted by defendant and seriousness of the legal interests trespassed by the illegal seizure and search.