위법수집증거의 증거능력배제 기준에 관한 고찰 = A Study on the Criterion of the Exclusionary Rule of Illegally Collected Evidence

다국어 초록 (Multilingual Abstract)

The Exclusionary Rule of Illegally Collected Evidence is introduced in the recently revised Criminal Procedure Act in Korea. From the viewpoint of the idea of truth-finding and due process, as is the principal of the constitutional law, both are not correct to recognize the illegally collected evidences and to deny totally. It must be testified case by case in deference of the meaning of the clause, the contents and the grade of the violation, the reason and the possibility of avoidance, the character of the rights or the benefits and protections of the law which the procedure clause protects, the grade of the violation, the relation with the accused, the causation between the violating acts and the collection of the evidences and the recognition and the intention of the investigator. Generally the principals such as the principal of the writ, the protection of the privacy and the personal rights can be criterion of the exclusion of the evidences. I studied the several cases from the viewpoint of those principals in this paper. Also, the interpretation of the clauses must be correspondent with the purpose of those clauses, especially in the interpretation of the Act of the Protection of the Secrets of the Communication. It will be developed by the accumulation of the judicial precedents and the theories.