국제형사법상 증거배제법칙에 관한 고찰

Taking into account that the Rome Statute was ratified by the National Assembly in 2002 and the Act on Punishment of Crimes associated with the International Criminal Court has been put into effect since it was legislated on Dec 21, 2007, coupled with the Article 308-2 of revised Code of Criminal Procedure which has now come into effect, it's necessary to review the Exclusionary Rule in International Criminal Law with its operation status. In view of the model of Exclusive Rule, the compulsory rule of exclusion has been employed in USA while discretionary rule of exclusion has been adopted in UK. Exclusionary Rule is stipulated in Article 67-7, 67-4 and Article 95 of ICTY and ICTR. A relief measure for the right infringed for reasons of Exclusionary Rule, disciplinary action against the enforcement authority and maintenance of the upright procedure are recommended. Exclusionary Rule has two types, namely compulsory rule of exclusion and discretionary rule of exclusion for impartial judgment, and there have been some objections and problems raised and pointed out against the Exclusioary Rule. With regard to Rome Statute, admissibility of evidence shall be forcibly denied, should the essential or basic human right be violated and the exclusion shall be determined by interest-balancing, should the private territory be invaded in the course of the gathering of proofs.