2007년 이후 형사소송법 주요 판례의 동향 ― 수사절차와 증거에 관한 대법원 판례를 중심으로 ― (A Review of the Criminal Procedure Cases since 2007)

서지정보

· 발행기관 : 한국형사판례연구회
· 수록지 정보 : 형사판례연구 / 25권 / 489 ~ 529페이지
· 저자명 : 김윤섭

초록

In 2007, the Criminal Procedure Act has been changed into actually new law reflecting the social demands to protect the rights of defendants and suspects in the criminal procedure. The Criminal Procedure Act was revised in 2011, adding the relevance as a requirement of seizure and specifying the range and method of seizure or search on digital evidence. And it supplemented the method of proving the authenticity of digital evidence with some amendments in 2016. It can be said that it has continued to influence the Supreme Court precedent and the precedent also influenced legislation and investigation practice and led to change.
This article examines the trends of major cases in the proceedings and evidence law since 2007. The Supreme Court’s cases on investigation procedures and evidence law have consistently emphasized the due process principles of the Constitution and the Criminal Procedure Law, and apply strict standards for existing practices throughout the investigation process including voluntary company, arrest, interrogation, and occasionally have suggested standards and directions of practice from the perspective of judicial control.
In particular, in 2007, the Supreme Court ruled that the exclusionary rule of illegally obtained evidence was applied to use of material evidence and the evidence that was illegally collected by the investigating agency in violation of the due process could not be used as evidence of guilt in principle. In the exceptional case that the procedural violation is not equivalent to the violation of the substantive contents of the due process, and the exclusion of the evidence is against the harmonization of the due process and substantive truth in the Constitution and the Criminal Procedure Law, the evidence can be used. Thereafter, the Supreme Court has elaborated the criteria and exceptional jurisprudence on the illegally obtained evidence through various precedents.
Since 2007, there have been important precedents related to the seizure of digital evidence, the authenticity and exceptional application of hearsay rule on digital evidence, and specific precedents on the interpretation and standards of exceptional application of hearsay rule of the revised Criminal Procedure Act, which were also the starting point of a new discussion.
And this article suggests that, for right judicial justice, the two axes of the due process principle and the request for the discovery of the substantive truth should be mutually realized in harmony rather than abandoning any one.

영어초록

In 2007, the Criminal Procedure Act has been changed into actually new law reflecting the social demands to protect the rights of defendants and suspects in the criminal procedure. The Criminal Procedure Act was revised in 2011, adding the relevance as a requirement of seizure and specifying the range and method of seizure or search on digital evidence. And it supplemented the method of proving the authenticity of digital evidence with some amendments in 2016. It can be said that it has continued to influence the Supreme Court precedent and the precedent also influenced legislation and investigation practice and led to change.
This article examines the trends of major cases in the proceedings and evidence law since 2007. The Supreme Court’s cases on investigation procedures and evidence law have consistently emphasized the due process principles of the Constitution and the Criminal Procedure Law, and apply strict standards for existing practices throughout the investigation process including voluntary company, arrest, interrogation, and occasionally have suggested standards and directions of practice from the perspective of judicial control.
In particular, in 2007, the Supreme Court ruled that the exclusionary rule of illegally obtained evidence was applied to use of material evidence and the evidence that was illegally collected by the investigating agency in violation of the due process could not be used as evidence of guilt in principle. In the exceptional case that the procedural violation is not equivalent to the violation of the substantive contents of the due process, and the exclusion of the evidence is against the harmonization of the due process and substantive truth in the Constitution and the Criminal Procedure Law, the evidence can be used. Thereafter, the Supreme Court has elaborated the criteria and exceptional jurisprudence on the illegally obtained evidence through various precedents.
Since 2007, there have been important precedents related to the seizure of digital evidence, the authenticity and exceptional application of hearsay rule on digital evidence, and specific precedents on the interpretation and standards of exceptional application of hearsay rule of the revised Criminal Procedure Act, which were also the starting point of a new discussion.
And this article suggests that, for right judicial justice, the two axes of the due process principle and the request for the discovery of the substantive truth should be mutually realized in harmony rather than abandoning any one.

참고자료

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