형사소송법 제308조의2 적용 판례에 관한 연구

Article 308-2 of the Criminal Procedure Act, which has been in effect since January 1, 2008, has a problem as it stipulates that the evidence must be excluded once the act of collecting evidence is illegal, regardless of the degree of seriousness of violation of due process. This is because if the evidence capacity of all evidence is excluded because minor violations were involved in the evidence collection process of the investigative agency, it would be impossible to punish the crime, which would not only violate justice, but also jeopardize the maintenance of public order. For this reason, from the standpoint of discretionary exclusion theory, our Supreme Court is taking a position to recognize the exception to the law of exclusion of illegal collection evidence if certain requirements are satisfied. It seems that the court is not complying with Article 308-2 of the Act. The Supreme Court, however, ruled in many cases to exclude evidence without exception if due process is violated by faithfully applying this regulation, and the confusion of Supreme Court precedents shows serious differences between the Supreme Court and the lower court on whether to exclude evidence of illegal collection. This phenomenon is not an early situation since the enforcement of this law and occurs frequently today, so its seriousness can be said to be significant. For the unification, equity, and legal stability of legal application, we must establish a legal basis for discretionary judgment by clearly stipulating that the court is the subject of discretionary judgment on whether or not to recognize the evidence capacity of illegal collection evidence, and to correct the imbalance in the application of the judge's arbitrary exclusion of illegal collection evidence by mandating the sentence of profit between the public interest and the protection of individual basic rights.