자백배제법칙에서의 임의성의 의미와 전망

Abstract

Before the article 308-2 of the Criminal Procedure Code had founded, there was no provision that regulates Exclusionary Rule of illegally acquired evidence in Korean Criminal Procedure Code. In addition, according to detailed example of the illegal act of the article 309 that regulates Confession Rule, even the voluntariness is accepted upon the statements of evidence, such as a confession, there is point of view that the admissibility of evidence upon illegally acquired evidence was denied. On the contrary, for the matter of material evidence, even the acquisition method is illegal act the admissibility of evidence would not be denied because the quality of the evidence would not change. However, by establishing the article 308-2, it means that not only Exclusionary Rule of illegally acquired evidence would apply to material evidence as substantive enactment, but also reinterpret the meaning of the voluntariness within article 309. Before the article 308-2 was regulated, for the grounds of voluntariness the Exclusionary Rule had meaning prima facie. However, after the substantive enactment of Exclusionary Rule of illegally acquired evidence has founded seeking the grounds for the voluntariness upon the Exclusionary Rule means no more than confusion between illegality and the voluntariness. Therefore, limitation on the admissibility of evidence because of the illegality should assign to Exclusionary Rule of illegally gathered evidence in article 308-2 whether the evidence is testimonial evidence or non-testimonial evidence. In addition, it is necessary to understand the voluntariness that limits the admissiblity of evidence in Confession Rule as independent concept of its own.