The exclusionary rule is a judge-made doctrine that prohibits introduction of evidence obtained in violation of a defendant's Fourth, Fifth, and Sixth Amendment to the US Constitution. The Fourth Amendment to the US Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The exclusionary rule enforces this constitutional provision by excluding from the trial of a case any evidence that has been obtained by the government through means which violate the Fourth Amendment. The exclusionary rule operates as a bar to the use of evidence obtained as a result of an illegal search or seizure. The US courts have been reluctant to impose exclusion as a judicial remedy for a violation of a federal statute or regulation, or a Federal Rules of Criminal Procedure. The other major civilized country, such as UK, Canada, Japan, France, Italy, and Germany, also have their own exclusionary rule related with the improperly, illegally or unconstitutionally obtained evidence. The revised Code of Korean Criminal Procedure introduced the exclusionary rule of the US to the criminal justice system where Korean Supreme Court has been refusing to apply the rule to the material evidence which is obtained by the illegal search or seizure of the government. It provides that the evidence which is obtained by violating due process of law shall not be admitted. The admission of the evidence, in Korea, depends on whether the government followed the due process of law while the evidence that has been secured by violation of the constitutional right shall be excluded in US. In addition, the major opinion of Korean Supreme Court recently held that, in principle, the exclusionary rule should be applied to the material evidence if the evidence was obtained by the search or seizure process which did not follow the Korean Constitutional Law and Criminal Procedure Law. According to this ruling, there is a chance that the slight violation of the Criminal Procedure Code by investigative agents would result in exclusion. I disagree with this opinion of Korean Supreme Court because this opinion did not deeply considered the one of the goals in criminal procedure - the discovery of the truth. The standard of the exclusionary rule must be whether the illegality of government's violation is substantial or serious considering the spirit of due process of law. It was the minor opinion of that Supreme Court's ruling.

The right to remain silent is a basic right of the defendant or suspect guaranteed by the constitution and criminal procedure law. It is important to notify the right to the defendant or suspect so that he can excercise the right properly and effectively. It is appropriate to exclude the statement made by the suspect if the Miranda right notice is not given to him. However, once the police officer give the Miranda warning to the suspect, the statement after the notice can be admissible by the purged taint exception rule except that the officer abuse the rule. In addition to that, even if there is a breach of notification, the real evidence should be admissible. It is because the purpose of Miranda rule is to protect the statement not the real evidence. According to newly revised Korean Criminal Procedure Code, the range of exclusion can be interpreted very widely. However, we must be careful when we apply the rule to the real case in order to seek the balance between the human rights and social safety.

The Supreme court admits the real evidence in spite of the unlawfulness during the process of acquiring it. The reason of the theory is that truth-worthiness of the real evidence has not been changed by the fault of the investigation in gathering evidence. Considering the want of Destruction of Justice statutes, the Supreme court strikes the balance between the public interest and private protection by admitting the real evidence on all occasions. The reformed Criminal procedure law is going to introduce the exclusionary rule. The §302-2 stipulates that "The evidence which is not gathered by lawful process should be excluded." Comparing with other developed countries exclusionary rule, it is too broad. For instance, PACE act §78 (1) in England is “In any proceeding the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." In Canada, the constitution §24 ② provides that “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice in to disrepute." Even in the U.S., there are lots of exceptions to the exclusionary rule. Good faith theory, harmless error rule, the standing, restrictive application in Miranda rule violation. collateral use are the examples. The German's Beweisverwertungsverbote is the theory concerned about balancing the interest to protect the privacy. Thus basically it doesn't matter the manner of gathering the evidence. So it stats from quite different angle. When it comes to our exclusionary rule, we must be prudent when we apply the rules to the real case. We don't have to exclude the real evidence solely because it is not obtained according to the process of law. We should take into account the motive of the police, the seriousness of the case, the deterrence effects, the influence on the administration of justice, the value of the evidence. If the evidence is procured by private party, it should not be excluded. The criminal justice system don't have to depend on third party's action. Also there is the possibility that the third party or dependant will abuse the rule. There will be no remarkable deterrent effect, even if we remove the evidence on account of private party's illegal behavior.