증거법칙의 엄격성과 증거능력

Abstract

To precisely define hearsay is extremely difficult. In general, We may sat that "hearsay is a statement , other than one made by the declarant while testifying at trial, offerd in evidence to prove the truth of the matter asserted". Another definition of hearsay might be a statement made out of court that is not made in the course of the trial in which it is offered and that is offered for the truth of the fact asserted in statement where there is no opportunity for cross examination and without testimony. Korean Criminal Procedure Act article 310-2 provides that Except as provided for Article 311 through 316, any document which contains a statement in the place of the statement made at a preparatory hearing or during public trial, or any statement the import of which is another person's statement made outside preparatory hearing or at the time other than public trial date, shall not be admitted as evidence. The Korean Supreme court said that criminal investigation reports including the accused's statement is the written statement, therefore that report should be obedient Article 313. 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. This rule commands that where evidence has been obtained in violation of the privileges guaranteed by Korean Constitution and Criminal Procedure Act, the evidence must be excluded at the trial. Evidence which is obtained by an unreasonable search and seizure is excluded from evidence under the Criminal Procedure Law Article 308-2The 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 In this case, The Korean Supreme court said that the seized article without the warrant for seizure and during the suspect's absence is Evidence Illegally Obtained, therefore shall not be admitted as evidence, conclude that criminal investigation reports including the accused's statement is the written statement, and written statements have been held inadmissible under the rule excluding hearsay evidence when the form is judical or relates to judicial matters.