형사절차에서 피고인의 이의제기와 하자치유 － 법원의 후견의무(Fürsorgepflicht)를 중심으로 －

When there are judges’ illegal practices in criminal procedures, it is questionable whether healing of illegality could be accepted just because the defendant simply does not raise objections. The Korean Supreme Court admitted healing of illegality in that case on the ground that the defendant already gave up the right to ask question. Whether healing of illegality could be granted, in case the defendant does not raise objections, should be judged by criteria based on whether the judges provide an opportunity to raise objections to the defendant by actively fulfilling his “Fürsorgepflicht”(obligations of guardian). To admit that these kinds of opportunities are legally provided, the judges should explain to the defendant the result of the previous procedures, the possibility that there could be judges’ illegal practices in the previous procedures, the legal means of raising objections, the legal effects in case the defendant will not raise objections, etc. Furthermore, the judge should provide the defendant enough time to decide whether the defendant raise objections or not. If this “Fürsorgepflicht” is violated because the judges do not meet the aforesaid requirements, healing of illegality should not be accepted. Consequently, previous illegal procedures become ineffective and the evidences from these procedures should be excluded by the Exclusionary Rule. The defendant could raise objections at any time later in trial procedures in order to exclude these evidences. To actually ensure these defendant's objections, we should make a new comprehensive express provision concerning the defendant's right to raise objections and judges’ “Fürsorgepflicht”.