현행 형사소송법 제244조의 3의 해석에 대한 최근 법원 판결에 대한 분석 = The Critical Study of the Recent Judgment on the Criminal Procedure Code §244 III

다국어 초록 (Multilingual Abstract)

In order to abolish coercive police questioning in the criminal procedure, the Korean Constitution adopted human rights guarantees of the Anglo-American law such as the right to remain silent, the right to counsel, the warrant system, and the Miranda Rule· The Miranda Rule is a legal principle distinctively developed in the United States, holding that the evidence collected through illegal investigative methods be inadmissible in court because it violates the due process of law principle noted in the article 12 of the Korean Constitution and criminal procedure Code §244 III· A recent South Korean court acquitted a North Korean defector of carrying out espionage activities for the communist regime· The Seoul Central District Court delivered the not-guilty verdict to the defendant, citing lack of credibility in the evidence· The court said the defendant was questioned by investigators led by the National Intelligence Service without a lawyer present, which is a violation of the country``s criminal procedure law· The court did not acknowledge the evidence since the testimony was drawn up without following standard procedure· But this case has drawn intense criticism and oppositions of the interpretation on the criminal procedure Code §244 III· Unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him· It was based on the privilege against self-incrimination in Article 5 of the Affirmative Action of the U·S·, and ruled out confession· However, it largely deals with the exclusionary rule of confession in Korea and therefore there has not been sufficient discussion about excluding confession on the basis of the privilege against self-incrimination· In a case, the court holds that a real evidence obtained by the confession made without miranda warning can be admissible although there is undeniable illegality of not-mirandizing the suspect· This study tried to criticize in detail the Miranda Rule and the Korean Supreme Court cases which the U·S· Supreme Court established·