공소제기 후 작성된 ‘증인예정자 진술조서’의 증거능력

• 영문명: The Admissibility of a Witness-to-be Statement by Law Enforcement after the Defendant Being Charged
• 발행기관: 한국형사판례연구회
• 저자명: 이주원(Rhee, Joo– Won)
• 간행물 정보: 『형사판례연구』형사판례연구 제29권, 449~494쪽, 전체 46쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2021.06.30

영문 초록

In the case at issue, the accused was acquitted on all counts at the first trial and the prosecutor appealed against the decision. In the meantime, a person, who was supposed to testimony as a witness on a trial date (hereafter “witness-to-be”), was called for to attend law enforcement interrogation. The key issue arouse in this case is whether the extrajudicial witness-to-be statement is admissible as evidence. The Court rules that this statement shall not be admissible unless the accused gives its consent to the admissibility of the statement notwithstanding that the witness-to-be verifies the authenticity of the statement and the accused has a chance to confront the witness-to-be at court. If the accused does not give its consent to the admissibility of the statement, the exceptions to the rule against hearsay shall not apply. The Theory of Relative Illegality suggested in this paper explains why and how the Court reached the conclusion. The rationales for the decision are: the adversary criminal justice system, the principle of court-oriented trials, the principle of immediacy, and the right to a fair trial. The case at issue has extended the scope of the established precedent on reversal of testimony and its admissibility to any statement of persons other than the accused recorded by law enforcement officers outside courts. This case has taken a major step forward in light of the adversary criminal justice system and the principle of court-oriented trials. Furthermore, the Court confirmed that evidence acquired through illegitimate law enforcement practice against the principle of court-oriented trials shall not be admissible.

목차

대상판결 : 대법원 2019. 11. 28. 선고 2013도6825 판결

Ⅰ. 들어가는 말

Ⅱ. 공소제기 후의 참고인조사에 관한 기존 논의

Ⅲ. 증언번복 진술조서의 증거능력에 관한 기존 판례

Ⅳ. 증인예정자 진술조서의 증거능력에 관한 검토

Ⅴ. 대상판결의 적용범위

Ⅵ. 결론

키워드

피고인 아닌 자 진술조서 공소제기 후 작성된 증인예정자 진술조서 증거능력 증거동의 반대신문권 ‘상대적 위법’ 이론 persons other than the accused a witness-to-be statement by law enforcement after the defendant being charged admissibility of evidence defendant’s consent to evidence right to confront witness a theory of “Relative Illegality”