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- 저자 : 이춘산(Chun San Lee) (검색결과 1 건)
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김성진(Sung Jin Kim ),이춘산(Chun San Lee) 중앙법학회 2015 中央法學 Vol.17 No.3
As the principle of exclusion of evidence illegally obtained is expressly stipulated expressively under Article 308-2 of the Criminal Procedure Act, the change with respect to the scope of application of confession rule under Article 309 which is used by the criterion of probative value with confession is also inevitable. In other words, in the case of confession illegally obtained, the probative value of the confession can be excluded under the Article 308-2 without applying to the confession rule under Article 309. In this regard, this paper examines the relationship between the confession rule and principle of exclusion of evidence illegally obtained in order to decide the probative value of confession evidence. In addition, it explores a reasonable method with respect to the decision of the probative value of confession evidence. The detailed contents are as follows. First, it is a relationship between the confession rule under Article 309 and principle of exclusion of evidence illegally obtained under Article 308-2. Article 309 gives the examples such as torture, violence, threat, etc. as an illegal way to obtain illegal evidence so that an essential content is seen as excluding the probative value of confession evidence which is doubtable of voluntariness. By contrast, Article 308-2 is comprehended as the principle of exclusion of evidence with respect to all of the evidence obtained by illegal ways regardless of confession or not. Therefore, in the case of confession, there are two things, one of which is related to the case of excluding evidence by the confession rule under Article 309 and the other is related with the case of excluding evidence by the principle of exclusion of evidence illegally obtained under Article 308-2. As a result, not only the evidence without voluntariness obtained by an legal procedure, but also the confession obtained by violating the legal procedure which has voluntariness can not be denied as probative values. Second, it is the order of application with respect to both principles. In principle, the probative value of confession shall be decided by the confession rule and it shall be applied by the principle of exclusion of evidence illegally obtained only if the probative value of confession illegally obtained is problematic. This regard is not a problem even though the probative value is decided by the perspective of theory of voluntariness through applying to the confession rule with torture, violence, threat, illegal long-term period of restriction of body, fraud under Article 12(7) of the Constitutional Law and Article 309 of the Criminal Procedure Act. Third, it is about whether or not there is a causal relationship between illegality of procedure and confession. In the case of confession, it is necessary to prove the causal relationship between illegality of procedure and confession in order to apply the confession rule. On the other hand, it is not necessary to prove it in order to the principle of exclusion of evidence illegally obtained. Lastly, it is the criterion of exclusion of evidence. The evidence of confession denies the probative value with no exception because it affects a value of evidence with confession evidence by violation of procedure of confession obtained unlike material evidence. Therefore, there is not problem to secure the effectiveness of exclusion of evidence despite the principle of exclusion of evidence illegally obtained with respect to confession evidence.
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