민사소송절차에서 상대방의 동의 없는 무단녹음 증거의 증거능력에 관한 대법원 판결에 대한 검토

On the judgment of The Supreme Court Desisions, it is reasonable to judge that evidence such as wiretapping without the consent of the other party by a “third party” or recording of conversations between others by a “third party” has no evidentiary value based on the provisions of the Communications Secrets Protection Act. However, it is difficult to understand judgment, it was determined that unauthorized recording of a ‘phone call’ without the other party’s consent does not constitute wiretapping. But Phone call is considered telecommunication, if one party records a phone call with the other party without consent, it should be considered wiretapping as defined in Article 2, Paragraph 7 of the Communications Secrets Protection Act. Next, it is difficult to understand that in the case of an ‘one party’ recording without the other party’s consent, the admissibility is recognized without any standards or exceptions. The Civil Procedure Act regulates legal relationships that guarantee private autonomy and is based on the principle of the adversarial system, it is reasonable to interpret that the evidentiary value is recognized in principle. However, as an exception, in the case of a recording is made in a way that violates human dignity guaranteed by the Constitution, the evidentiary capacity must be excluded. And it is appropriate to judge the admissibility based on three criteria: necessity for a fair trial, degree and seriousness of infringement on legal interests, and supplement of preservation and method of obtaining evidence.