타인 간 대화 녹음물의 증거능력과 정당행위 — 수원지방법원 2024. 2. 1. 선고 2022고단7025 판결을 중심으로 —

Recently, a special education teacher was reported on suspicion of child abuse, and the court rendered a guilty verdict. As evidence leading to the conviction, an audio recording of a conversation between the teacher and the victimized child was submitted. The main issue was whether the secretly recorded conversation between other parties could be admissible as evidence. In this regard, the court acknowledged that the recording in question constituted a violation of the “Protection of Communications Secrets Act” as it involved the recording of a non-public conversation between others. However, the court also ruled that it was a justified act and thus not unlawful, thereby recognizing the recording as admissible evidence. Even if the purpose of a parent's secret recording of a teacher during class was to uncover signs of child abuse, the act is difficult to consider as a justified act due to the lack of the appropriateness, urgency, and supplementality of other methods or means. Even if the act were to be considered a justified act, such justification would only exempt the parent from criminal punishment under the “Protection of Communications Secrets Act” for the illegal recording. It is not appropriate to recognize the admissibility of evidence by applying this to a prohibition provision rather than a punishment provision. And Allowing admitting evidence that was intentionally obtained through criminal means would set a dangerous precedent where such evidence could be misused for ease of collection. Moreover, since the “Protection of Communications Secrets Act” explicitly states that such recordings cannot be used as evidence in legal proceedings, Even if the illegality is eliminated on the grounds of a justificated act, evidence collected by indiscriminately and maliciously violating the right to privacy should not be deemed admissible.