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진술거부권의 고지 대상으로서의 “피의자”의 의미Study on the Meaning of “Suspect” as an Object of Miranda Notice under Korean Criminal Procedure Act

Other Titles
Study on the Meaning of “Suspect” as an Object of Miranda Notice under Korean Criminal Procedure Act
Authors
강수진
Issue Date
2012
Publisher
안암법학회
Keywords
형사소송법(Korean Criminal Procedure Act); 진술거부권(Privilege against Self-Incrimination; Right of Silence); 진술거부권의 고지(Notice on the suspect' s right of silence; Miranda Notice); 피의자(Suspect); 피의자의 개념(Definition of Suspect); 생래적 강요상황(Compulsion Inherent); 구금적 신문(Custodial Interrogation); 인지(Book); 내사(Internal Investigation); 유죄협상(Plea Bargaining)
Citation
안암법학, no.38, pp.133 - 165
Indexed
KCI
Journal Title
안암법학
Number
38
Start Page
133
End Page
165
URI
https://scholar.korea.ac.kr/handle/2021.sw.korea/134149
ISSN
1226-6159
Abstract
Article 244-3 of Korean Criminal Procedure Act should be understood as the only and the most important device to guarantee the right of silence which is recognized under the Korean Constitution. Korean Supreme Court dealt with the issue of permissibility of evidence obtained without prior notice on the right of silence as well as the issue of what is a "Suspect" having the right of such prior notification in its recent decision(2011. 11. 10. decided, decision number 2011DO8125; hereinafter "The Decision"). In this article, for the purpose of reviewing the acceptability of The Decision's rationale, we will first introduce substantial meaning of the Right of Silence and then review the component of Miranda Notice, especially "Custodial Interrogation". We also relate the definition of a "Suspect" under Korean Criminal Procedural Act and the meaning of "Custodial Interrogation" believing that both concepts are appeared to solve the problem of "Compulsion Inherent". Considering the above elements, The Decision seems to suggest the right answer in that it defines a suspect in substantial way rather than formalistic one. However, the concrete rationale it suggests in construing a "Suspect" does not seem to grasp Constitutional idea of right of silence. For instance, it suggests that a Suspect's status starts only after a prosecutor find a suspicion of crime and enters into an investigation. It left too much discretion to the investigating authority to misuse its power for the purpose of obtaining illegal evidence. In conclusion, the Court should review every possible circumstances a person who is the object of interrogation could face and even he or she is not a Suspect officially, if he of she is in a situation of compulsion inherent and believed in the same situation as "Custodial Interrogation", it should be defined as a "Suspect" under Article 244-3 of Korean Criminal Procedure Act.
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