조국, 2007년 이후 대물적 강제처분 분야에서의 위법수집 증거배제, 2017.04, 비교형사법 연구
[Abstract]
Exclusion of Physical Evidence Obtained from Illegal Search-and-Seizure Since the 2007 Historic Turning
Cho, Kuk
While excluding illegally obtained confessions, the Korean Supreme Court had consistently declined to exclude the physical evidence obtained by illegal search-and-seizure until recently. On November 15, 2007 the Korean Supreme Court made a landmark decision to exclude illegally obtained physical evidence. In 2007 the National Assembly revised the Criminal Procedure Code to stipulate Article 308-2 for the exclusion of illegally obtained evidence, which is effective as of January 1, 2008. It reads: "The evidence obtained not by due process of law shall be excluded." Since then, the Supreme Court has made a series of decisions to exclude physical evidence obtained from illegal search-and-seizure. First, this paper analyzes the 2007 Supreme Court decision, highlighting the difference between the majority opinion and the concurring opinion regarding the standard of exclusion. Second, it defends discretionary rule in the field of search-and-seizure, attending to the difference of nature of the violated consitutional rights between in the cases of illegally obtained confession and illegally obtained physical evidence. Third, it reviews a series of the Supreme Court’s decisions after 2007 in the cases of warrantless search-and-seizure of physical evidence and computer data as well as warrantless blood-drawing and photo/video-taking.
조국, 2007년 이후 대물적 강제처분 분야에서의 위법수집 증거배제, 2017.04, 비교형사법 연구
[Abstract]
Exclusion of Physical Evidence Obtained from Illegal Search-and-Seizure Since the 2007 Historic Turning
Cho, Kuk
While excluding illegally obtained confessions, the Korean Supreme Court had consistently declined to exclude the physical evidence obtained by illegal search-and-seizure until recently. On November 15, 2007 the Korean Supreme Court made a landmark decision to exclude illegally obtained physical evidence. In 2007 the National Assembly revised the Criminal Procedure Code to stipulate Article 308-2 for the exclusion of illegally obtained evidence, which is effective as of January 1, 2008. It reads: "The evidence obtained not by due process of law shall be excluded." Since then, the Supreme Court has made a series of decisions to exclude physical evidence obtained from illegal search-and-seizure. First, this paper analyzes the 2007 Supreme Court decision, highlighting the difference between the majority opinion and the concurring opinion regarding the standard of exclusion. Second, it defends discretionary rule in the field of search-and-seizure, attending to the difference of nature of the violated consitutional rights between in the cases of illegally obtained confession and illegally obtained physical evidence. Third, it reviews a series of the Supreme Court’s decisions after 2007 in the cases of warrantless search-and-seizure of physical evidence and computer data as well as warrantless blood-drawing and photo/video-taking.