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세관공무원의 마약 압수와 위법수집증거 판단 KCI 등재
A study of the exclusionary rule on the case of the drug confiscated by customs officers
The exclusionary rule is a principle restricted in order to draw appropriate conclusions according to the common sense of the community, and for this reason, other major countries recognize various exceptional theories of the exclusionary rule. In addition, article 308-2 of the Criminal Procedure Law stipulates the exclusion of automatic and mandatory evidence on evidence of illegal collection, which may lead to unjustified results depending on the case. Therefore, for the proper operation of article 308-2, it is necessary to interpret the meaning of ‘procedural violation’ as limited as possible rather than expanding it.
For a limited interpretation, taking into consideration that the main reason for recognizing the exclusionary rule is to deter illegal investigations, it is only a violation of the due process that the investigating agency has clearly made its intention to violate the due process.
From this point of view, the act of obtaining the evidence of the crimes that the customs officer discovered during the customs clearance inspection for international mail or international cargo and handing over the evidence to the investigating agency is considered to be legal. Because the nature of the customs inspection work performed by customs officer is an administrative investigation, and he has cooperated with the investigation of the investigating agency by taking the measures attached to the work. He is not considered to have conducted an investigation.
In the end, it is important to look closely at whether the customs officer or investigative agency’s conduct of drug seizure directly violates the due process and it is intentionally malicious.
[사실관계]
[판결 이유]
[대상판결 2] 대구고등법원 2016. 11. 24. 선고 2016노323 판결(대법원 2017. 2. 21. 선고 2016도20488 판결로 확정)
[사실관계]
[판결 이유]
[대상판결 3] 대법원 2017. 7. 18. 선고 2014도8719 판결
[사실관계]
[판결 이유]
[연 구]
Ⅰ. 시작하는 말
Ⅱ. 세관공무원의 행정조사와 수사
Ⅲ. 위법수집증거의 판단기준
Ⅳ. 맺는 말
[참고 문헌]
[Abstract]
