현행 압수ㆍ수색 절차상 plain view 원칙의 적용 가능성과 입법론적 검토
The Admissibility of the Plain View Doctrine in Search and Seizure under Korean Criminal Procedure Law and A Study on the Enactment of the Doctrine
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The plain view doctrine permits an officer to make a warrantless seizure of incriminating items that she comes upon while otherwise engaged in a lawful arrest, entry, or search. The plain view doctrine is premised on the notion that once the item has been spotted in plain view by the officer, insistence on a warrant authorizing its seizure would be a needless inconvenience that would not significantly serve the privacy interest of the subject because the item has already been discovered. The Fourth Amendment of US Constitution pursues the equilibrium between the protection of the fundamental right of human beings and the efficiency of criminal investigation. The plain view doctrine is the very balance point between them that the US Supreme Court has found in the search-seizure procedure. Under the Korean law, there is no stipulation that embraces the plain view doctrine and Korea's Supreme Court hasn't introduced the doctrine in the interpretation of the related codes. The Korea's Criminal Procedure Act stipulates the warrantless searches and seizures only under the circumstances related to the lawful arrests. However, it would be unreasonable to request the police to obtain the seizure warrant, when they inadvertently discovered the illegal or evidentiary items of other crimes in the course of the lawful searches. Generally speaking, the scope of searches and seizures authorized without warrants under the Korean law is comparatively restricted compared to warrantless searches and seizures in the US Supreme Court and other jurisdictions such as U.K., Germany and Japan. Futhermore, with the incorporation of exclusionary rule of evidence in the Korea's Criminal Procedure Act, the Korea's Supreme Court has sharply put restriction on the scope within which the illegally seized evidence can be admitted. In this article, I first reviewed the admissibility of the plain view doctrine under the present Korea's Criminal Procedure Law, and then explored the legislative issues which should be taken into consideration when legislating the doctrine. In light of the global standard in the realm of warrantless search and seizure, I think Korean law and courts need to keep a looser rein on the evidence obtained during the lawful searches.
Abstract
The plain view doctrine permits an officer to make a warrantless seizure of incriminating items that she comes upon while otherwise engaged in a lawful arrest, entry, or search. The plain view doctrine is premised on the notion that once the item has been spotted in plain view by the officer, insistence on a warrant authorizing its seizure would be a needless inconvenience that would not significantly serve the privacy interest of the subject because the item has already been discovered. The Fourth Amendment of US Constitution pursues the equilibrium between the protection of the fundamental right of human beings and the efficiency of criminal investigation. The plain view doctrine is the very balance point between them that the US Supreme Court has found in the search-seizure procedure. Under the Korean law, there is no stipulation that embraces the plain view doctrine and Korea's Supreme Court hasn't introduced the doctrine in the interpretation of the related codes. The Korea's Criminal Procedure Act stipulates the warrantless searches and seizures only under the circumstances related to the lawful arrests. However, it would be unreasonable to request the police to obtain the seizure warrant, when they inadvertently discovered the illegal or evidentiary items of other crimes in the course of the lawful searches. Generally speaking, the scope of searches and seizures authorized without warrants under the Korean law is comparatively restricted compared to warrantless searches and seizures in the US Supreme Court and other jurisdictions such as U.K., Germany and Japan. Futhermore, with the incorporation of exclusionary rule of evidence in the Korea's Criminal Procedure Act, the Korea's Supreme Court has sharply put restriction on the scope within which the illegally seized evidence can be admitted. In this article, I first reviewed the admissibility of the plain view doctrine under the present Korea's Criminal Procedure Law, and then explored the legislative issues which should be taken into consideration when legislating the doctrine. In light of the global standard in the realm of warrantless search and seizure, I think Korean law and courts need to keep a looser rein on the evidence obtained during the lawful searches.
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