형사소송절차에서의 영상정보의 법적 문제에 관한 연구

This Article aims to review legal aspects of videotaping and discuss admissibility of personal imagery evidence which was taken by investigatory agents or private citizens especially in public places. For this purpose, this paper defines personal imagery evidence as any imagery evidence which enables to identify personal information, and reviews the related constitutional rights, specifically, portrait rights, a right to control personal information and a right to privacy. Based on the discussion, the author argues that courts need to judge the application of exclusionary rules and the criteria of search and seizure differently as the degree of legal protection on aforementioned related constitutional rights varies according to circumstances, for example, where and by whom the evidence was taken. Regarding search and seizure issues, the author argues that the criteria need to be based on due process of law which requires fundamental fairness in a criminal trial because the exclusionary rules stem from due process of law. That being said, there is no search and seizure when invasion of those related constitutional rights is justified by compelling state’s interest even if those constitutional rights seem to be infringed. Under this principle, the act of taking imagery evidence without subject’s consent by investigatory agents or private citizen in public places is not a search and seizure, and thus the evidence is admissible.