In accordance with the provision of Article 308–2 of Criminal Procedure Act, any evidence obtained in violation of the due process shall not be admissible. This Article newly inserted by Act No. 8496, Jun. 1. in 2007.
Since then, there has been a series of a decision on the evidence, including the exclusionary rule, the fruits of poisonous tree doctrine, and the circumstance that would give exceptionally the admissibility of secondary evidence.
In addition, there were a number of decisions that required to be prepared in compliance with the due process and proper methods in giving the admissibility of evidence in relation to the protocol, etc. prepared by prosecutor or senior judicial police officer.
As a whole, due to the influence of making a stipulation of the exclusion of evidence illegally obtained, it is clear that the case law in the field of evidence law is proceeding in a direction to emphasize the guarantee of the due process.
And in accordance with the provision of Article 314(Exception to Admissibility of Evidence) or 316(Statement of Hearsay) (2), in the case of Article 312 or 313, if a person who is required to make a statement at a preparatory hearing or a trial is unable to make such statement, which is impossible to exercise the right of cross–examination, the relevant protocol and other documents shall be admissible as evidence: Provided, that this shall apply only when it is proved that the statement or preparation was made in a particularly reliable state. In relation to the above provisions, court’s decision maintains a more rigorous interpretation as a requirement for admissibility of hearsay evidence.
In addition, court’s decision seems to be proceeding to apply strictly requirements for admissibility of evidence of documents or output from the digital storage media, explaining the requirements of seizure and search of digital storage media in response to overall scientific and information– oriented society.
And the recent decision describes the problem of establishing the judgment criteria of scientific evidence as a solution to the problem of misuse of science among the problems in the process of interaction between science and law in accordance with the criminal case.
In conclusion, it is still a question of how to realize concretely the general principle that the two sets of demands, namely the discovery of substantive truths and the protection of the human rights of defendants (the guarantee of due process and the deterrence of illegal investigation) under the exclusionary rule.

Ⅰ. 들어가면서
 Ⅱ. 위법수집증거배제법칙의 적용(원칙적 증거능력 배척, 예외적 인정)
  1. 개 요
  2. 위법수집증거의 증거능력 배제와 그 2차적 증거의 예외적허용
  3. 인과관계의 단절 내지 희석 여부
  4. 위법수집증거배제법칙과 관련한 대법원 판례의 동향
  5. 私人이 위법하게 수집한 증거의 증거능력에 대한 판례
  6. 위법수집증거배제 주장적격자의 범위
  7. 소결론 ― 형소법상 위법수집증거 배제법칙에 관한 동향
 Ⅲ. 傳聞法則과 傳聞證據의 증거능력의 요건 관련 판례
  1. 어떤 증거가 전문증거인지 여부는 요증사실과의 관계에서정해짐
  2. 검사 작성의 피의자신문조서 관련
  3. 검사 이외의 수사기관 작성의 피의자신문조서 ― ‘그 내용을인정할 때’의 의미
  4. 수사과정에서 작성한 진술조서, 진술서의 증거능력 문제
  5. 형소법 제314조에 의한 증거능력 인정 요건 중 ‘증인이 소재불명이거나 그 밖에 이에 준하는 사유로 인하여 진술할 수없는 때’에 해당한다고 인정하기 위한 요건
  6. 피고인이 증거서류의 진정성립을 묻는 검사의 질문에 대하여진술거부권을 행사하여 진술을 거부한 경우는 형소법 제314조의 ‘그 밖에 이에 준하는 사유로 인하여 진술할 수 없는때’에 미해당
  7. 형소법상 참고인 소재불명 등의 경우 ‘특히 신빙할 수 있는상태 하에서 행하여졌음’에 관한 사례
  8. 증거동의의 주체(=소송주체)
 Ⅳ. 전자적(디지털)증거 관련 판례
  1. 전자적 정보의 압수 관련 판례
  2. 전자증거(digital evidence 혹은 electronic evidence)의 증거능력 관련 판례
  3. 소결론 ― 형소법 제313조, 제314조 개정(2016. 5. 29. 법률제14179호)
 Ⅴ. 자유심증주의(증명력 관련)
  1. 개 요
  2. 형소법 제308조에서 규정하는 자유심증주의의 의미와 한계
  3. 과학적 증거에 대한 일반적인 판단기준의 정립
 Ⅵ. 맺으며
 [참고문헌]
 [Abstract]

• 박진환(Presiding Judges, Uijeongbu District Court.) | Park, Jin-hwan