적법절차에 따르지 않고 수집된 증거의 증거능력에 대한 고찰

While the most of the rulings of Supreme Courts and theories have not accepted 'evidence admissibility' on evidences acquired by investigative agencies infringing suspects' human rights, a position on applying exclusionary rule of evidence admissibility only on statement evidence has extended its application scope into non-statement evidence. The Korean Criminal Procedure Code reflected the various theories and practices stipulates that evidence acquired 'without due process' should not be taken as admissible evidence. The introduction of the provision using comprehensive concept of "without due process" for applying exclusionary rule to the illegally acquired evidence could be seen as inclusive evidence admissibility restraining provision. This stipulation demands observance of due process principle as basic idea of Criminal Procedure Code in the whole evidence obtaining process. As various theories and opinions about the scope of violation of the due process have been suggested, the Supreme Court has open the probability to accept exceptional evidence admissibility based upon reflecting various cases and context. According to the provision, all acquired evidences, even though violating just mere trivial procedure, cannot be used as admissible evidence. Obviously, this provision is partly undesirable because it is not only against substantial truth principle, but also making harmful effects on litigation economic costs. However, considering the importance of the provision, it is desirable to make it as an absolute principle that illegally acquired evidence could not be taken as admissible evidence. However, in some cases, there may be against the purpose of legislation even though in only exceptional cases, its evidence admissibility can be accepted from the positive substantial truth and litigation economy. And also even in the trivial violating cases, denying its evidence admissibility might be contrary to the spirit of the legislation. The paper tries to illuminate the concrete limits on extremely exceptional cases when illegally acquired evidences could be accepted its evidence admissibility as long as it is not against the basic idea of due process. In order to specify the exceptional criteria, the paper reviews the rulings of the Supreme Court and various conflicting theories and then analyzes specific cases.