형사소송법상 압수수색 관련 규정에 대한 비판적 고찰 (A Critical Consideration of the Provisions Related to Seizure and Search in the Criminal Procedure Law)

서지정보

· 발행기관 : 서울시립대학교 서울시립대학교 법학연구소
· 수록지 정보 : 서울법학 / 19권 / 1호 / 189 ~ 222페이지
· 저자명 : 김경수

초록

Changes in the judicial environment such as the enhancement of human rights and hearing-centrism are requesting a shift in the new paradigm for investigation, and accordingly the investigative agency shows a tendency to focus on the securing of material evidence. In the case of the violation of the Public Office Election Law by the governor of Jeju, the supreme court decided that the evidence collected without following the procedures stipulated in the Constitution and the Criminal Procedure Law cannot, in principle, be used as the evidence for a plea of guilty as it does not follow the legal procedures stipulated to guarantee basic human rights. And Subsec. 2 of Sec. 308 of the revised Criminal Procedure Law requires that the evidence collected without following legal procedures cannot be used as the material evidence, thereby stipulating the principle of excluding the illegally collected evidence.
This tendency is interpreted as th expression of the will to devise the phenomena of having the admissibility of evidence denied due to procedural illegality in the process of investigation beforehand. Ultimately, it is seen as the effort to observe the due process of law, harmonize the finding of substantial truth with the protection of the accused' human rights and realize the idea of criminal procedure.
And as for problems such as the duty of warrant presentation, the scope of warrant notice, independent urgent seizure and search, the object of seizure and search of electronic information or savings credit, there are no or few grounds in the Criminal Procedure Law, leading to controversy in interpretation and great confusion in the practices of investigation. This confusion would result in engaging in the right and wrong of procedural legality and causing the phenomenon of getting the admissibility of evidence of the material evidence seized. Accordingly, this study was intended to overcome these problems through efforts for legislative improvement such as the establishment or amendment of substantive enactment in the Criminal Procedure Law and find out the way to harmonize the finding of substantial truth and the protection of the accused' human rights.

영어초록

Changes in the judicial environment such as the enhancement of human rights and hearing-centrism are requesting a shift in the new paradigm for investigation, and accordingly the investigative agency shows a tendency to focus on the securing of material evidence. In the case of the violation of the Public Office Election Law by the governor of Jeju, the supreme court decided that the evidence collected without following the procedures stipulated in the Constitution and the Criminal Procedure Law cannot, in principle, be used as the evidence for a plea of guilty as it does not follow the legal procedures stipulated to guarantee basic human rights. And Subsec. 2 of Sec. 308 of the revised Criminal Procedure Law requires that the evidence collected without following legal procedures cannot be used as the material evidence, thereby stipulating the principle of excluding the illegally collected evidence.
This tendency is interpreted as th expression of the will to devise the phenomena of having the admissibility of evidence denied due to procedural illegality in the process of investigation beforehand. Ultimately, it is seen as the effort to observe the due process of law, harmonize the finding of substantial truth with the protection of the accused' human rights and realize the idea of criminal procedure.
And as for problems such as the duty of warrant presentation, the scope of warrant notice, independent urgent seizure and search, the object of seizure and search of electronic information or savings credit, there are no or few grounds in the Criminal Procedure Law, leading to controversy in interpretation and great confusion in the practices of investigation. This confusion would result in engaging in the right and wrong of procedural legality and causing the phenomenon of getting the admissibility of evidence of the material evidence seized. Accordingly, this study was intended to overcome these problems through efforts for legislative improvement such as the establishment or amendment of substantive enactment in the Criminal Procedure Law and find out the way to harmonize the finding of substantial truth and the protection of the accused' human rights.

참고자료

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