형사소송법 제309조 ‘기타의 방법’의 유형별 고찰

The Article 309 of our Criminal Procedure Code defines the unlawful protraction or fraud of torture, assault, threat & bodily restriction as typical ground for the exclusion of confession. In regards to ‘Other Method’, it also defines that when there is reasonable ground to doubt that defendant did not testify voluntarily, it cannot be considered as evidence of guilt. Although the grounds for exclusion of confession stated in Article 309 are examples, the specific types of ‘Other Methods’ are ‘simple warning’, ‘promise’, ‘interrogation’, ‘overwork’, ‘night (all-night) questioning (all-night)’, ‘restriction (or prohibition) of carrying in food’, ‘bargaining’ and ‘appeasement’. Although threat is typical ground for the exclusion of confession, threat by investigative agency during the process of summon request should also be seen as affecting the voluntary nature of testimony if the investigative agency has threatened defendant during the process of summon request and that status lasted until the questioning of the investigative agency. In the case of simple warning that appears as specific threat by going beyond the level of warning can also be ground to deny or doubt the voluntary nature of testimony. Other cases include the promise by investigative agency being specific as a return service for defendant’s confession, and appeasement or cross-examination that go beyond the level of cross-examination to reach the level of suppression or oppression and threat. Furthermore, unnecessary repetitious questioning can also be ground to deny or doubt voluntary nature of testimony. In addition, confession obtained through the method of preventing defendant from sleeping for an extended period of time or to the level of being unable to be examined through physical & mental fatigue should also be seen as ground to deny or doubt the voluntary nature of confession.