행정소송법상 위법수집증거의 증거능력

With the advancement of science and technology, a large amount of data is being generated, collected, and stored on electronic devices such as computers and smartphones in everyday life. In the case of companies, data generated during the course of work is stored on servers or in cloud systems. Accordingly, during investigation procedures or administrative investigations, a large volume of data is obtained through digital forensics on various electronic devices or servers. However, as the amount of data collected increases, the possibility of illegal intervention in the process of collecting the data also increases. In the future, with the development of information and communication technologies such as artificial intelligence and the Internet of Things, as well as biotechnology, it seems likely that a new type of massive data will be generated, collected, and stored, and administrative dispositions will also be made based on such data. Therefore, there is a need to discuss this issue under the Administrative Litigation Act. This article examines whether any grounds should be considered as criteria or factors for judging the admissibility of illegally obtained evidence in administrative litigation, assuming that the procedure or method of collecting evidence is illegal, but the evidence itself is not damaged because the evidence has not been forged or altered. Although the Administrative Litigation Act applies the provisions of the Civil Procedure Act in relation to the examination of evidence, there is a special characteristic in that the discovery of substantive truth is particularly important in the case of administrative litigation to implement the rule of law through the control of the legality of administrative actions. However, on the other hand, if illegally collected evidence is not excluded from administrative litigation, there is a concern that individual rights may be violated, and this may infringe on the public interest that the relevant laws are intended to achieve. Therefore, when judging whether or not to exclude illegally obtained evidence in administrative litigation, such conflicting values ​​must be compared and balanced. In this regard, this article intends to present the following as criteria or elements for judgment: the content and degree of illegality, whether the illegality resulted from intent or gross negligence, whether and to what extent an individual’s rights are violated, whether illegality in the method or procedure of collecting evidence affects the reliability of the evidence, whether and to what extent the right to a fair trial is violated, whether or not there is a deterrent effect on the illegal acts of administrative agencies, whether and to what extent there may be social costs that may arise if the administrative disposition cannot be maintained due to the exclusion of illegally collected evidence, and the characteristics of the legal relationship between the administrative agency and the party to the disposition.