위법수집증거배제법칙에 관한 10년간 판례의 흐름

• 영문명: Flow of 10 year s Court Precedents on Exclusionary Rule
• 발행기관: 한국형사소송법학회
• 저자명: 김승주(Kim, Seung-Joo)
• 간행물 정보: 『형사소송 이론과 실무』제9권 제1호, 193~241쪽, 전체 49쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.06.30

영문 초록

Since Criminal Procedure Act and Supreme Court declared the introduction of Exclusionary Rule in 2007, Supreme Court of Korea has accumulated several precedents about this rule in last 10 years. These precedents has shown 3 features ; ① If an investigative s act in the process of acquiring evidence is ruled illegal, this evidence is presumed to be excluded from the pools of evidence irrelevant to the degree of illegality, in principle. ② Exceptionally, some evidences can be admitted through the fair comparison of interests, between the request to keep Due Process and the needs to find Substantial Truth. ③ Due process should be taken seriously for the realization of constitutional civil rights. According to ① or ③ features, Supreme Court has held tight grip about the relevance between the fact of suspicion written on search warrant and the evidence acquired according to this warrant. Including this theme, This article settles the flow of precedents in last 10 years shown at the various, individual cases. Otherwise, precedents related to ② features has been formed especially on the admissibility of secondary evidence, which has been judged with priority given to dilution or disconnection of causality. These precedents show the influence of 「fruit of a poisonous tree」 doctrine or the other exception theories of the United States, as well as the effects of Japanese or German precedents.

목차

Ⅰ. 들어가며

Ⅱ. 전합판결의 판단구조

Ⅲ. 총론적 쟁점

Ⅳ. 각론적 검토 1 : 대물적(對物的) 수사방식 관련

Ⅴ. 각론적 검토 2 : 대인적(對⼈的) 수사방식 관련

Ⅵ. 각론적 검토 3 : 재판에서의 증거조사(수집) 관련

Ⅶ. 이른바 ‘2차적 증거’의 증거능력

Ⅷ. 마치며

키워드

exclusionary rule fair comparison of interests secondary evidence relevance due process