자백배제법칙의 근거와 임의성의 판단 - 위법배제설의 관점에서 본 형사소송법 제309조의 의미 재검토 -

It has been controversial topic on the rational of the confession rule, enacted in the article 309 of Korean Criminal Procedure Code. The article 309 provides the exclusion of involuntary confessions made under torture, battery, threat, deceit or after prolonged custody as well as confessions whose voluntariness is doubtful. There has been a lot of arguments surrounding this article, and they are mainly about the reason why the confession taken under some wrongful situations is inadmissible - which is because the confession is illegal or does not have reliability. If we take reliability test, the confession is excluded based on its reliability, not on its voluntariness. Then confession is admissible when it is reliable even though obtained involuntarily. It may, therefore, be resonable conclude that the confession is excluded because it is obtained illegally. Korean Criminal Procedure Code amendment imposed the exclusionary rule of illegally collected evidence on the article 308-2 lately. It means any evidence cannot be obtained through the violation of due process of law. This article, however, has not been settled yet. The argument on the scope and the standard of the exclusionary rule still goes on. Moreover, this revision makes another issue on the relation between the confession rule and the exclusionary rule. If the exclusion of confession is based on its illegality, the matter is which principle - exclusionary rule or confession rule - is applied on that process. Under the situation like that, this study tries to make a new approach to interpret 'illegality' which can make difference between illegality on the article 309 and the 308-2.