‘재량적’ 위법수집증거배제(론)에 대한 비판적 고찰 - 왜 유독 ‘비진술증거’에 대해서만 ‘재량적 배제’를 인정하려 하는가? -

Abstract

Not that long ago, the Korean Supreme Court has consistently refused to exclude the non-statement(physical) evidence obtained by illegal, and has given the following rationale, “even 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”. But in 2007, changing the established judgment, the Korean Supreme Court ruled that, in principle, the exclusionary rule should be applied to the non-statement(physical) evidence if the evidence was obtained by the search or seizure process which did not follow the Korean Constitutional Law and Criminal Procedure Law. In the same year, the revised Code of Korean Criminal Procedure introduced the exclusionary rule of the US to our criminal justice system through the Article 308-2. But in spite of this changes, the Korean Supreme Court has treating the non-statement(physical) evidence differently from statement evidence as ever. Because the Korean Supreme Court admits an exception through the 『discretionary exclusion』(theory) only for the illegally obtained physical evidence. However, through the discretionary exclusion, this permission of an exception is never undesirable and unreasonable. The reasons are as follows. First, it is a discriminative treatment in the baseless that the Korean Supreme Court which appling horizontally the exclusionary rule to the statement evidence has admitting an exception through the discretionary exclusion only for the non-statement(physical) evidence. Second, Because the discretionary standards which the Korean Supreme Court being offered are unclear and obscure, it is unreasonable to confirm an excessive discretion of judgment to the court through these discretionary standards. Consequently, it is desirable that the exclusionary rule should be applied commonly and mandatorily regardless of statement or non-statement evidences.