형사소송에서 절차의 위법성과 증거의 증거능력

The illegality of the procedure obtaining evidence that leads to the exclusion of the admissibility of evidence should be determined by balancing conflicting interests under specific circumstances. Both the due process of law and the truth-finding function of the process are important purposes in the criminal procedure. Since the legal effect prescribed in Article 308-2 of the Criminal Procedure Act is to exclude the admissibility of evidence, ‘any evidence obtained not through the due process of law’ is to be interpreted as ‘any evidence obtained through essentially violating the freedom or right of a criminal suspect’. This understanding also corresponds to the words of article 308-2. The Supreme Court has decided whether the act is legal or not by reviewing the subjective circumstance of the actor at the time of the act on the cases of the mistake of the justification. The Supreme Court‘s view may lead to the effect comparable to the acknowledgement of the ’good faith exception’. If the procedure obtaining evidence is in the relation of the ‘same purpose and direct use’ with the illegal preceding procedure, the causality may be diluted or severed. In this case, the key element is the suspect's intervening act of free will. This is the ‘purged taint exception’. In addition, it is necessary for the court to clearly provide the reason of the judgement when the court judge whether the evidence illegally obtained is admissible or not in order that the exclusionary rule’s application scope and limit can be clearly recognized.