자백증거의 증거능력에 관한 법해석론적 고찰

This article tries to make a new approach to interpret illegality which can make difference between illegality on the article 309 and the article 308-2. The criminal procedure law stipulates for limit of admissibility of the confession through article 309 as the rules of the criminal evidence law. It is regulating that the confession which enables to doubt the voluntariness may not be admitted as evidence of guilt. Article 309 is provided the example of cases in which enables to doubt the voluntariness by illegal reasons such as the torture, violence, intimidation, etc. It is a general attitude that the jurists understand the confession which is taken by illegal ways as problems of Article 309. However, Article 308 clause 2 which stipulate the exclusionary rule of illegally obtained evidence is established newly by the reform of criminal procedure law 2007. Under the criminal procedure law, the confession by the torture, violence, intimidation is illegally obtained evidence and has to judge whether admissibility of evidence is recognized or not by article 308- 2. In this point of view, in a case where a confession obtained from such an legal search but be doubtful voluntariness has to be interpreted regulation as denying admissibility of evidence according to article 309. Therefore, under the existing criminal procedure law regulating exclusionary rule of illegally obtained evidence, a traditional exclusionary theory which has claimed as a source of theory about the admissibility of the confession is not reasonable anymore. Furthermore, under the reform of criminal procedure law, it should be grasped that illegal ways in article 309 is only reconfirmation exclusionary rule of il1egally obtained evidence regulated in Article 308-2. In this thesis, I propose that it is necessary to reconstruct the criminal procedure Law Article 308-2 and Artic1e 309 for harmonious interpretation in Article 12 Clause 7 of Constitution.