진술거부권 불고지에 대한 소송법적 문제

• 영문명: The Gloomy Reality of Miranda Warning and Exclusionary Rule in Korea
• 발행기관: 한국형사법학회
• 저자명: 박용철(Park, Yong-Chul)
• 간행물 정보: 『형사법연구』형사법연구 제22권 제1호, 97~124쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.02.03

영문 초록

Presumably, the Exclusionary Rule is a legal principle distinctively developed in the United States, holding that the evidence collected through illegal investigative methods be inadmissible in court because it violates the due process of law principle noted in the Constitution. Korea, eager to moving forward to seek for procedural truth in criminal proceedings, adopted the exclusionary rule and made it as a part of the Criminal Procedure Code. In the U. S. the Rule has drawn intense criticism and oppositions among lawyers because it is more likely that the Rule can be used for the advantage of criminals because they might be able to set aside the incriminating evidence due to the procedural illegality made by the police. Such concern explains why the Rule has been railroaded by so many exceptions where illegally obtained evidence can still be used in court over the years since the Rule was recognized in the U. S. Supreme Court. In Korea, as mentioned before the Rule became effective in 2008 when the Criminal Procedure Code in Korea had a great overhaul. As soon as the Rule became official, the Korean Supreme Court seemingly and unknowingly started to tear down the basic principle of the Rule by holding onto so called substantive truth principle which had been the governing one for criminal procedure in Korea. In a case the Court holds that the real evidence obtained by the confession made without miranda warning can be admissible although there was undeniable illegality of not-mirandizing the suspect. The rationale behind the ruling was that admitting such tainted evidence would be benefitial for the purpose of seeking substantive truth and such insignificant illegality of not mirandizing the suspect. Such holding is a great setback from a case where the Court ruled that real evidence could be inadmissible even though the procedural mistake was deemed to be trivial.

목차

Ⅰ. 들어가는 말

Ⅱ. 우리법상 적법절차의 의미

Ⅲ. 위법수집증거배제법칙과 진술거부권과의 관계

Ⅳ. 독수과실의 원칙과 2차적 증거의 증거능력

Ⅴ. 우리 판례에의 적용

Ⅵ. 맺음말

키워드

Privilege against Self-Incrimination Procedural Due Process Exclusionary Rule Attenuation Doctrine Independant Source