공판조서의 증거능력에 대한 위헌여부에 대한 연구

• 영문명: Theadjudicationontheconstitutionalityonthe admissibilityofevidenceofprotocols: intheprovision3ofArticle315oftheCriminalProcedure
• 발행기관: 한국형사판례연구회
• 저자명: 오경식(Kyung Sik Oh)
• 간행물 정보: 『형사판례연구』형사판례연구 제22권, 421~452쪽, 전체 32쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2014.06.30

영문 초록

This research paper is a commentary on the Constitutional Court’s 2013.10.24. sentence 2011 Hunba 79 decision. The point issues of the Constitutional Court’s decisions are as follows. Whether it has violated the principle of definiteness, the principle of excess prohibition, and whether including the accomplice’s protocol of trial in the same article is a violation of the constitution. This writer is a testifier who has suggested a constitutional opinion in the Constitutional Court’s public defense. Therefore, there will be an annotation on the Court’s decision based on the written opinion which may agree with the Court’s basis of decision or have a different perspective towards it. The legislative intent of the provision 3 of Article 315 of the Criminal Procedure is to accept creditable papers with exceptions to the hearsay rule, allowing the trial procedure to get along smoothly and contributing to the finding of the truth of substance. Japan, on the other hand does not allow a protocol of trial from a different case to have admissibility of evidence. However, there is not a big difference in the procedure of deciding the actual admissibility. Similarly, the United States enumerates the exceptions to the hearsay rule, presuming it limitedly, but with multiple instances laid in the legislation, there is not much difference, compared to Korea’s criminal procedure, in how the evidence law is operated. In addition, the provision 3 of Article 315 of the Criminal Procedure is a regulation on the procedure for the preservation of evidence, not applied to the principle of definiteness. Also, the interpretation itself can concretely determine the range of application, therefore not a vague regulation. As seen above, the provision 3 of Article 315 of the Criminal Procedure does not transgress the principle of legal step or the principle of excess prohibition. In short, the provision 3 of Article 315 of the Criminal Procedure is constitutional, considering the legislative intent, comparison with foreign legislation cases, and juridical examination. Though the protocol of trial with an accomplice’s testimony is guaranteed to have a high level of ‘voluntariness’ and ‘due process’ because it is realized in the court before judges, considering the content, there may be a possibility of false testimony to shift responsibility on the defendant. In conclusion, this writer approves of the improvement of the legislation, for it is more desirable to have a definite legislation to guarantee people’s basic human rights and develop the code of criminal procedure based on the principle of constitutional state.

목차

[대상결정] 헌법재판소 2013. 10. 24. 선고 2011헌바79 결정

Ⅰ. 문제제기

Ⅱ. 전문법칙 및 그 예외에 대한 해외 입법례

Ⅲ. 형사소송법 제315조 제3호의 명확성 원칙 위배 여부

Ⅳ. 형사소송법 제315조 제3호의 적법절차 원칙 위배 여부

Ⅴ. 형사소송법 제315조 제3호의 재판청구권 침해여부

Ⅵ. 결론

키워드

형사소송법 제315조 제3항의 헌법재판소 결정 공판조서의 증거능력 증거법칙 전문법칙의 예외 적법절차의 원칙 the provision 3 of Article 315 of the Criminal Procedure protocol of trial the evidence law commentary on the Constitutional Court’s 2013.10.24. sentence 2011 Hunba 79 decision