私人에 의한 위법수집증거의 배제범위

Abstract

The Exclusionary Rule of Illegally Collected Evidence is the part of Criminal Procedure Code that it does not admit as Evidence ability of the Illegally Collected Evidence. The Illegally Collected Evidence is constituent in ways of human rights infringement. But as the world becomes the information-oriented and open society these days, the violation of private persons fundament rights by private person, especially as scientific development the violation by nongovernment pressure group or private corporation,comes to the front as serious problems. In general, the private judical relation is controlled by the principle of private autonomy. But all sorts of the private judical relation is irrelevant to fundament rights. If fundamental rights has the constant objective value in order to maintain integration community, the private judical relation must have been protected by not only nation but also private person. Among Korean Constitution rights granted all persons under the article 16 and 17 is the right to protect the freedom of the privacy and residence. We indicated that this constitutional safeguard is today binding on not only state criminal procedure but also private relation. These days a nation and private person have organic relationship to maintain and develop a communal society. In large area the private person has been functioned and have to function as another department. In modern society, under the present circumstance that private person and company overpowered than nation appear, the infringement of fundament rights in private judical relation become grower and more serious. Therefore conservative fundamental rights security by only government is not enough and the intrinsic fundamental rights as like the freedom of the privacy and residence must be protected in case any infringement by private person. The problem of harmony doesn't solve the conflict between voluntary search and the idea of safeguarding human rights in criminal justice. This important problem is widely discussed. Fragmentary and superficial approachment is not problem solution of systematic, more synthesis and inclusive studies. In criminal procedure code, about evidence ability or recognize of illegally collected evidence, ask of true discovery doctrine and from this point of safeguarding human rights, what point of harmony to constitutional ideas in asking the movements of the due process As to these issues, in this study we investigated theories and cases about admissibility of evidence of the infringement of the freedom of the privacy and residence by private person who are regulated by the criminal law. All evidence illegally obtained by private person may not prohibited. The Korean Supreme court said that in that case the value of the evidence was estimated by legal interest between the prosecution and the accused. But the freedom of the privacy and residence is protected by Constitution,and without warrant by the judge any person shall not infringe. Therefore the illegally obtained evidence by private person's illegal violation domicile should not be admitted.