타인 간 대화 녹음물의 증거능력과 정당행위 - 수원지방법원 2024. 2. 1. 선고 2022고단7025 판결을 중심으로

• 영문명: Admissibility of Evidence and Justifiable Act on Recordings of Conversations between Others
• 발행기관: 충북대학교 법학연구소
• 저자명: 강미영(Mi Young Kang)
• 간행물 정보: 『법학연구』第36卷 第1號, 37~61쪽, 전체 25쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2025.06.30

국문 초록

Recently, a special education teacher was reported on suspicion of child abuse, and the court rendered a guilty verdict. As evidence leading to the conviction, an audio recording of a conversation between the teacher and the victimized child was submitted. The main issue was whether the secretly recorded conversation between other parties could be admissible as evidence. In this regard, the court acknowledged that the recording in question constituted a violation of the “Protection of Communications Secrets Act” as it involved the recording of a non-public conversation between others. However, the court also ruled that it was a justified act and thus not unlawful, thereby recognizing the recording as admissible evidence. Even if the purpose of a parent's secret recording of a teacher during class was to uncover signs of child abuse, the act is difficult to consider as a justified act due to the lack of the appropriateness, urgency, and supplementality of other methods or means. Even if the act were to be considered a justified act, such justification would only exempt the parent from criminal punishment under the “Protection of Communications Secrets Act” for the illegal recording. It is not appropriate to recognize the admissibility of evidence by applying this to a prohibition provision rather than a punishment provision. And Allowing admitting evidence that was intentionally obtained through criminal means would set a dangerous precedent where such evidence could be misused for ease of collection. Moreover, since the “Protection of Communications Secrets Act” explicitly states that such recordings cannot be used as evidence in legal proceedings, Even if the illegality is eliminated on the grounds of a justificated act, evidence collected by indiscriminately and maliciously violating the right to privacy should not be deemed admissible.

목차

[대상판결]

[연구]

Ⅰ. 들어가며

Ⅱ. 타인 간의 대화 녹음물의 증거능력에 관한 규정 검토

Ⅲ. 본 사안에 대한 구체적 적용

Ⅳ. 정당행위를 통해 확보한 불법녹음물의 증거능력

Ⅴ. 맺으며

참고문헌

키워드

비밀녹음의 정당행위 증거능력 통신비밀보호법 위법수집증거배제법칙 사생활보호 Justifiable Act of Secret Recording Admissibility the Protection of Communications Secrets Act Exclusionary Rule Privacy