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A Study on Violate Due Process of Law and That`s Effect in Criminal Proceedings

  • DONG-A LAW REVIEW
  • 2009, (44), pp.539-568
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Hyeon-Soo Kim 1

1제주대학교

Candidate

ABSTRACT

The fundamental idea in the criminal procedure is at just application of criminal law through revealing substantial truth of the crime in the range of the doctrine of due process of law. The doctrine of due process of law in criminal procedure guarantees fair procedures and prevent arbitrary when government deprives an individual of life, liberty or property. In criminal proceedings, there is a probability that human rights will be violated by the officials. Therefore, criminal proceedings must be dealt with in accordance with due process of law and government power must be restrained in the range of the doctrine. Due process of law contains fair play in trial, prohibit of overrule, opportunity to prepare a defence, safeguarding a suspect and the accused. For example, arrest or search and seizure, entrapment investigation, illegally obtained evidence other illegal process, the confession by a torture, the documents or articles obtained by that confession, etc. These cases which violate a due process of law. special effect must be imposed. Otherwise, due process of law does not guaranteed. Therefore the evidence obtained by a illegal has no admissibility of evidence(the court denies using evidence). Despite the violation of the due process of law, if it is convicted guilty, the accused will appeal against the conviction. And there is a possibility that claims damages or compensation against officials. Now in Korea, it is more compulsory that observe due process of law which is for human rights of a suspect and the accused. Therefore, criminal procedure should to be a constitutional. Most of all, investigation agency especially must have firm human rights for all people.

Citation status

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