독수과실의 원리

• 영문명: The “Fruit of Poisonous Tree” Doctrine
• 발행기관: 한국형사판례연구회
• 저자명: 조국(Cho, Kuk)
• 간행물 정보: 『형사판례연구』형사판례연구 제17권, 448~466쪽, 전체 19쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.06.30

영문 초록

On November 15, 2008 the Korean Supreme Court made a landmark decision to exclude illegally obtained physical evidence. It also adopted the “fruit of poisonous tree doctrine, which excludes the derivative evidence obtained through the first tainted evidence. This Article reviews the Supreme Court s two decisions that applied the “fruit of poisonous tree doctrine. First, the Decision of March 12, 2009 provides more specific standards to decide whether to exclude “tainted fruits. It requests comprehensive evaluation of all the circumstances regarding the collection of the first tainted evidence: the reasons and degree of process violation, the possibility of avoiding the violation, the causation between process violation and evidence collection, and the willfulness or negligence of law enforcement officers. Then, it does not exclude the physical evidence obtained without warning the suspect of the right to silence. This Article argues that the right to silence is the most crucial legal instrument to protect a suspect, particularly when the suspect is under interrogation without his/her counsel; it is a grave violation for a police officer not to warn a suspect of the right; in this case, exceptions of the “fruit of poisonous tree doctrine are not applicable; so the physical evidence obtained without warning a suspect of the right to silence should be excluded. In the Decision of October 23, 2008 the Supreme Court held that the fingerprints on the illegally seized bottles and cups are admissible even if the seizure of the bottles and cups is illegal. This Article argues that such a view may weaken the constitutional request for warrant for search-and-seizure; the illegal seizure of the bottles and cups contaminates the evidentiary power of the fingerprints. In this case, however, the consent of the victim who is the owner of the bottles and cups is reasonably inferred, so the seized bottles and cups are admissible and the fingerprints on them are also admissible.

목차

Ⅰ. 들어가는 말

Ⅱ. 대상판결 1: 대법원 2009. 3. 12. 선고 2008도11437 판결

Ⅲ. 대상판결 2: 대법원 2008. 10. 23. 선고 2008도7471 판결

Ⅳ. 맺음말

키워드

예외법칙 독수과실 배제증거 적법절차 원칙 exclusionary rule fruit of poisonous tree derivative evidence due process