장애인·아동·노인 학대행위와 제3자에 의한 타인 간의 대화 녹음의 증거능력- 미국의 ‘프라이버시(Privacy)에 대한 합리적 기대’, ‘부모 대리 동의’ 법리를 중심으로-

This study examined the inflexibility of prohibiting the recording of conversations between third parties under the Communications Secrecy Protection Act and explored potential solutions, focusing on a case where parents of a child with autism recorded their child's school class to confirm abuse. The first-instance court ruling deemed this recording act a justified act under Article 20 of the Criminal Act, thereby negating its illegality and recognizing its evidentiary admissibility. The first-instance court considered factors including the child's lack of self-defense capabilities, the urgency of confirming abuse, the absence of alternative effective means, and the greater weight of the interest in protecting the child from abuse through recording compared to the interest in protecting the privacy of the classroom setting. However, the appellate court ruled that even if the act was justified under Article 20 of the Criminal Act, it did not affect the provision in the Communications Secrecy Protection Act denying the evidentiary admissibility of recordings of of others' conversation made by a third party. Consequently, it denied the evidentiary value of the recording made by the parents of the disabled child and acquitted the defendant on the formal grounds that there was no evidence to establish the abuse. A comparative legal review revealed that the UK and Japan lack criminal penalties or legislation on evidentiary exclusion for private secret recordings, instead determining admissibility case-by-case through fairness and comparative weighing. Germany strictly regulates secret recordings under the principle of consent from all parties, but also determines admissibility individually through recognition of justifying circumstances like emergency rescue or self-defense, or comparative weighing. In the case of the United States, which significantly influenced the enactment of Korea's Communications Secrecy Protection Act, federal and many state courts exclude classrooms where public education occurs from the scope of wiretapping regulations imposing criminal penalties and exclusion of evidence, based on the ‘reasonable expectation of privacy’ doctrine. Even when wiretap laws apply, federal courts and most state courts that permit covert recording by one party recognize parental or guardian covert recording for the child's best interests when there is objective ground of suspected abuse, under the legal principle of ‘parental vicarious consent’. In Korea, there have been some attempts in lower court rulings to mitigate the rigidity of the Communications Secrecy Protection Act, which prohibits third-party recording of private conversations between others. However, a restrictive interpretation of the concept of ‘conversation’ alone allows only extremely narrow exceptions, and the Supreme Court has not adopted a flexible interpretation of the concept of ‘publicity’ of conversations through balancing with privacy protection. The Supreme Court applies comparative balancing to evidence illegally collected by private individuals in general but maintains an absolute exclusion of admissibility for secret recordings violating the Communications Secrecy Protection Act. Compared to the Supreme Court's recognition of interpretive exceptions to the Criminal Procedure Act's absolute exclusion rule for illegally obtained evidence by investigative agencies -which contains no exceptions- this stance is excessively rigid. The Supreme Court also prohibits recordings made by third parties with the consent of only one party, effectively making self-defense impossible for disabled individuals or children who cannot record themselves. Substantively, Korea should adopt the U.S. theory of reasonable expectation of privacy in interpreting its Communications Secrecy Protection Act. Conversations with minimal privacy intrusion but strong public interest should be excluded from protection. Vicarious recording by guardians of children, disabled persons, or the elderly -who lack self-defense capabilities- should be permitted under certain conditions. Formally, as in the legal reasoning in the first-instance ruling, when justifiable acts constitute grounds for negating illegality, not only should criminal punishment be excluded, but the provision denying evidentiary admissibility should also not apply.