위법수집증거배제법칙과 사인 수집 증거의 증거능력

As the main investigating agents set by Criminal Procedure Act consist of publicagents including prosecutors and police officers, Exclusionary Rules stipulated in §308-2 of Criminal Procedure Act cannot be applied as it is to private persons whoare not authorized as an investigating officer. Provided however, there is noobjection to a claim that evidence obtaining activities by private person regardlesslegitimacy or illegitimacy may not be fully admitted. With the legislation ofExclusionary Rule in the Criminal Procedure Act, rooms were left for thepossibilities that Exclusionary Rule can be also applied extendedly to private personswith the operative word of “Due Process of Law”. In reviewing the admissibility ofevidence obtained by private person, establishment of clear criteria concerning thelegal effect & requirement focusing upon the notion of Due Process of Law as oneof the key issues of Exclusionary Rule is required. The main purpose of this articleis to provide legal grounds to the legitimacy of the evidence accumulation by theprivate person and give further explanation to the admissibility of evidences obtained by such person based upon them. Moreover, although it has been a longtime sincethe introduction of “Due Process of Law” in the history of Korean Laws, it is notuntil recently that it has become the subject of great concern due to its conceptualambiguity. Notwithstanding the express stipulation of the “Due Process of Law” &“Exclusionary Rule” with the amendment of Criminal Procedure Act 2007, these twoconcepts still remains un-clarified. Main reasons of the most legal practitioners’disturbances and the frustration of the jurists in dealing with the concept of “DueProcess of Law” are mostly attributable to its difficulty in setting definite criteriatherewith, and such a situation shows no sign of clear solution, as it is familiar onlywith the legal thinking based upon the Civil Law tradition, but rather lacking inmaking attempts to the paradigm shift in the legal reasoning of the concept of lawderived from and based upon the Common Law tradition. Although it has to beadmitted that the only way to fully eliminate this confusion and clear obscurity inreasoning methods based upon the Civil Law tradition is just to legislate a statute,but making stipulation of “Due Process” and “Exclusionary Clause” in CriminalProcedure Act 2007 also needs to be understood as serving a new momentum. Wemight well assume that § 308-2 prepares a new starting point for jurisprudencebased on common law tradition of legal reasoning and argumentation on academicand practicing area.