2007년 형사소송법 개정 후 증거법 분야의 판례 동향

• 영문명: Trend of judicial precedents in the field of evidence law after revision of criminal procedure law in 2007
• 발행기관: 한국형사판례연구회
• 저자명: 박진환(Park, Jin-hwan)
• 간행물 정보: 『형사판례연구』형사판례연구 제25권, 561~605쪽, 전체 45쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.06.30

영문 초록

In accordance with the provision of Article 308–2 of Criminal Procedure Act, any evidence obtained in violation of the due process shall not be admissible. This Article newly inserted by Act No. 8496, Jun. 1. in 2007. Since then, there has been a series of a decision on the evidence, including the exclusionary rule, the fruits of poisonous tree doctrine, and the circumstance that would give exceptionally the admissibility of secondary evidence. In addition, there were a number of decisions that required to be prepared in compliance with the due process and proper methods in giving the admissibility of evidence in relation to the protocol, etc. prepared by prosecutor or senior judicial police officer. As a whole, due to the influence of making a stipulation of the exclusion of evidence illegally obtained, it is clear that the case law in the field of evidence law is proceeding in a direction to emphasize the guarantee of the due process. And in accordance with the provision of Article 314(Exception to Admissibility of Evidence) or 316(Statement of Hearsay) (2), in the case of Article 312 or 313, if a person who is required to make a statement at a preparatory hearing or a trial is unable to make such statement, which is impossible to exercise the right of cross–examination, the relevant protocol and other documents shall be admissible as evidence: Provided, that this shall apply only when it is proved that the statement or preparation was made in a particularly reliable state. In relation to the above provisions, court’s decision maintains a more rigorous interpretation as a requirement for admissibility of hearsay evidence. In addition, court’s decision seems to be proceeding to apply strictly requirements for admissibility of evidence of documents or output from the digital storage media, explaining the requirements of seizure and search of digital storage media in response to overall scientific and information–oriented society. And the recent decision describes the problem of establishing the judgment criteria of scientific evidence as a solution to the problem of misuse of science among the problems in the process of interaction between science and law in accordance with the criminal case. In conclusion, it is still a question of how to realize concretely the general principle that the two sets of demands, namely the discovery of substantive truths and the protection of the human rights of defendants (the guarantee of due process and the deterrence of illegal investigation) under the exclusionary rule.

목차

Ⅰ. 들어가면서

Ⅱ. 위법수집증거배제법칙의 적용(원칙적 증거능력 배척, 예외적 인정)

Ⅲ. 傳聞法則과 傳聞證據의 증거능력의 요건 관련 판례

Ⅳ. 전자적(디지털)증거 관련 판례

Ⅴ. 자유심증주의(증명력 관련)

Ⅵ. 맺으며

키워드

위법수집증거배제법칙 독수독과원리 오염순화예외 전자증거 증거능력 증명력 과학적 증거 the exclusionary rule fruits of poisonous tree doctrine the purged taint exception digital evidence admissibility of evidence the probative value scientific evidence